IN  THE  COURT  OF  APPEALS  OFTHE  DISTRICT  OF  COLlilBII 


The  Buck’s  Stove  & Range  Co.  ^ 

PLAINTIFF  J 

f 

VS.  f 

> No.  27,305  Equity 

The  American  Federation  of  Labor  ( 

ET  AL. 

DEFEND\NTS 

ARGUMENTS  IN  CONTEMPT 

PROCEEDING 

ALTON  B.  PARKER 

JACKSON  H.  RALSTON 

Solicitors  for  Defendants 

J.  J.  DARLINGTON 

JAMES  M. 

BECK 

DANIEL  DAVENPORT 

Solicitors  for  Plaintiff. 

Published  for  Circulation  by  the 

American  Anti-Boycott  Association 

27  WILLIAM  STREET  - NEW  YORK  CITY 


Argument  of  Mr.  ALTON  B.  PARKER 


Argument  of  Mr.  J.  j.  DARLINGTON 


Argument  of  Mr.  JAMES  M.  BECK 


Argument  of  Mr.  JACKSON  H.  RALSTON 


S'iV^T 

IN  THE  CIRCUIT  COURT  OF  APPEALS,  DISTRICT  OF 

COLUMBIA. 

April  Term,  1909. 

Washington,  D.  C., 

April  19,  1909. 

The  above  entitled  cause  came  on  for  argument  before  Chief 
Justice  Shepherd,  Justice  Robb  and  Justice  Van  Orsdel. 

APPEARANCES : 

For  the  appellants,  Mr.  Alton  B.  Parker  and  Mr.  Jackson  H. 
Ralston. 

For  the  appellee,  Mr.  James  M.  Beck,  Mr.  Daniel  Davenport 
and  Mr.  J.  J.  Darlington. 


PROCEEDINGS. 


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Mr.  Ralston : If  the  Court  please,  the  case  of  Samuel  Gompers, 
John  Mitchell  and  Frank  Morrison  vs.  Buck  Stove  & Range 
Company  is  for  argument  this  morning.  Before  entering  into 
the  discussion,  I want  to  say  that  it  may  be  very  difficult  for 
us,  the  fact  is  it  is  impossible,  subject  to  your  Honors’  orders, 
however,  to  present  and  finish  the  argument  of  our  case  within 
the  two  hours  customarily  allowed.  So  far  as  we  are  concerned, 
we  would  ask  that  the  discussion  might  be  unlimited,  assuring 
the  Court  that  should  that  be  allowed,  the  privilege  extended  to 
us  would  not  be  abused.  I do  not  know  what  the  disposition 
finally  of  our  friends  on  the  other  side  may  be. 

Mr.  Beck:  There  is  no  bill  of  exceptions  before  the  Court. 
Two  hours,  I think,  would  be  sufficient  for  counsel  for  appellee. 
Of  course  we  do  not  wish  a case  of  this  character  to  affect  the 
disposition  of  the  Court  with  reference  to  time  for  counsel  for 
appellants.  We  are  willing  to  be  limited  by  the  rules  of  the 
Court. 

The  Chief  Justice : We  will  not  apply  the  limit  fixed  by  the 
rules,  as  this  is  the  last  case  for  hearing  at  the  term. 


Mr.  Ralston:  If  your  Honors  please,  I desire  to  move  the 
admission  of  Mr.  James  M.  Beck,  of  New  York,  former  Assistant 
Attorney  General  of  the  United  States. 


3 


The  Chief  Justice:  Mr.  Beck  will  be  admitted  on  taking  the 
oath  at  the  Clerk’s  desk. 

(The  oath  was  thereupon  administered  to  Mr.  Beck  by  the 
Clerk.) 

The  Chief  Justice:  Gentlemen,  you  may  proceed  with  the 
argument. 


ARGUMENT  OF  MR.  ALTON  B.  PARKER, 

On  behalf  of  Appellants. 

Mr.  Parker:  May  it  please  your  Honors,  I shall  not  ask  the 
patience  of  the  Court  while  I proceed  with  an  argument  of  more 
length  than  I usually  present,  because  I know  from  past  experi- 
ence in  this  Court  that  no  such  request  need  be  made,  that  the 
Court  will  be  patient.  But  I apologize  in  advance,  nevertheless, 
for  taking  up  as  much  time  as  I wish  to  take,  because,  your 
Honors,  this  to  me  is  the  most  important  cause  with  which  I 
have  had  to  do.  It  involves  little  in  amount,  nothing  in  the  way 
of  dollars  and  cents,  but  it  does  involve  the  disgrace,  the  punish- 
ment for  a long  period  of  time,  running  for  a year,  and  nine 
months,  and  six  months,  of  three  men  well  known  to  your  Honors, 
whose  private  lives  are  without  blemish,  whose  following  is 
unsurpassed  by  any  men  in  this  country  not  in  political  life, 
whose  leadership  has  long  been  recognized  by  a strong  and 
vigorous  and  growing  element  in  this  country.  They  are  to  be 
subjected,  if  the  order  stands  from  which  this  appeal  is  taken, 
to  punishment,  at  the  request  and  instigation  of  the  opponent 
of  these  defendants,  the  plaintiff  in  the  action. 

This  is  not  a case  where  the  Government  is  proceeding  against 
someone  because  he  has  violated  its  statutes  or  offended  against 
them.  It  is  a proceeding  forced  on  by  a party  to  the  action  who 
seeks  thereby  to  gain  an  advantage.  The  result  is  as  I have  said. 

I said  to  your  Honors  that  it  was  unexampled.  So  far  as  the 
search  which  has  been  made  by  my  learned  associates  and  the 
search  that  has  been  made  through  my  assistants — and  it  has 
been  made  as  thorough  as  they  could  make  it — there  is  no  other 
instance  in  the  history  of  this  country  in  which  a man  has  been 
adjudicated  guilty  of  contempt  and  then  punished  for  so  long  a 
period  of  time  as  either  Samuel  Gompers  or  John  Mitchell. 
So  far  as  our  reading  and  our  searching  goes,  there  are  but  three 
instances,  your  Honors,  previous  to  this  in  which  sentence  has 
been  for  so  long  a period  as  six  months ; but  there  are  three  such 
instances.  There  are  states  in  this  country  that  have  undertaken 
to  regulate  the  length  of  time  to  which  the  court  should  be  confined 
in  sentencing  a man  to  prison  for  violating  an  order  of  the  court. 
There  are  but  two  states  that  we  have  been  able  to  find  in  which 


4 


the  court  is  permitted  to  sentence  a man  for  so  long  a period  as 
six  months,  while  in  the  great  majority  of  states  in  which  there 
has  been  any  legislation  upon  the  subject  at  all,  the  term  of 
imprisonment  is  limited  from  ten  to  thirty  days,  thirty  days 
being  the  maximum  and  in  some  states  ten  days  being  the 
maximum. 

Among  the  instances  in  which  six  months  was  the  length  of 
the  term  fixed,  one  was  the  case  of  the  lawyer  who  assaulted 
an  officer  in  court  with  a deadly  weapon.  He  was  given  six 
months.  In  the  Thomas  case,  Thomas  against  Cincinnati,  your 
Honors  will  remember  that  Phelan  was  given  six  months,  and 
Judge  Taft  in  his  opinion  said — and  I beg  your  Honors’  attention 
while  I quote  from  it  as  to  the  character  of  that  conspiracy : 

“The  gigantic  character  of  the  conspiracy  of  the  American 
Railway  Union  staggers  the  imagination.  Debs  and  Phelan  and 
their  associates  proposed,  by  inciting  the  employees  of  all  the 
railways  in  the  country,  to  suddently  quit  their  service  without 
any  dissatisfaction  with  the  terms  of  their  own  employment, 
to  paralyze  utterly  all  the  traffic  by  which  the  people  lived. 
The  purpose,  shortly  stated,  was  to  starve  the  railroad  companies 
and  the  public  into  compelling  Pullman  to  do  something  which 
they  had  no  lawful  right  to  compel  him  to  do.  Certainly  the 
starvation  of  a nation  cannot  be  a lawful  purpose  of  a combina- 
tion.” 

On  page  822  of  the  record  in  that  case,  Judge  Taft  said 
further : 

“The  fact  that  it  was  the  purpose  of  Debs,  Phelan  and  their 
associates  to  paralyze  the  interstate  commerce  of  this  country 
is  shown  conclusively  in  this  case  and  is  known  of  all  men. 

“The  punishment  for  a contempt  is  the  most  disagreeable  duty 
a court  has  to  perform,  but  it  is  one  from  which  the  court  cannot 
shrink.  If  orders  of  the  court  are  not  obeyed,  the  next  step 
is  unto  anarchy.  It  is  absolutely  essential  to  the  administration 
of  justice  that  courts  should  have  the  power  to  punish  contempts, 
and  that  they  should  use  it  when  the  enforcement  of  their  orders 
is  flagrantly  defied.  But  it  is  only  to  secure  present  and  future 
compliance  with  its  orders  that  the  power  is  given,  and  not  to 
impose  punishment  commensurate  with  crimes  or  misdemeanors 
committed  in  the  course  of  the  contempt,  which  are  cognizable  in  a 
different  tribunal  or  in  this  court  by  indictment  and  trial  by  jury. 
I have  no  right,  and  do  not  wish,  to  punish  the  contemner  for 
the  havoc  which  he  and  his  associates  have  wrought  to  the  busi- 
ness of  this  country,  and  the  injuries  they  have  done  to  labor 
and  capital  alike,  or  for  the  privations  and  sufferings  to  which 
they  have  subjected  innocent  people,  even  if  they  may  not  be 
amenable  to  the  criminal  laws  therefor.  I can  only  inflict  a 
penalty  which  may  have  some  effect  to  secure  future  compliance 
with  the  orders  of  this  court  and  to  prevent  wilful  and  unlawful 
obstructions  thereof. 


“After  much  consideration,  I do  not  think  I should  be  doing 
my  duty  as  a judicial  officer  of  the  United  States  without  imposing 
on  the  contemner  the  penalty  of  imprisonment.” 

Then  the  Court  fixes  the  sentence  at  six  months. 

In  the  case  at  bar  the  sentence  has  been  fixed  at  a year,  and 
yet,  your  Honors,  without  being  able  to  put  the  Court’s  finger 
upon  a single  overt  act  made  after  that  order  went  into  effect, 
indicating  a purpose  on  the  part  of  either  one  of  the  three 
defendants  to  further  continue  that  boycott. 

It  is  unfortunate,  as  your  Honors  know,  that  it  should  so 
happen  that  for  the  trifling  allegations  against  these  defendants — 
and  I so  characterize  them  now,  for  I shall  take  them  up  one 
by  one  in  detail,  and  if  1 make  not  good  my  assertion,  I shall  be 
unfortunate  in  my  presentation — a man  like  Samuel  Gompers, 
for  twenty  years  the  honored  president  of  this  great  organization, 
sent  abroad  now  by  unanimous  vote,  to  represent  them  in  making 
a study  of  the  conditions  of  labor  and  capital  abroad,  a man 
who  is  the  welcome  Vice-President  of  the  National  Civic  Feder- 
ation, which  is  engaged,  as  your  Honors  all  know,  in  attempting 
to  ameliorate  the  conditions  of  capital  and  labor  and  cause  them 
to  work  as  harmoniously  together  as  it  is  possible,  an  organiza- 
tion unsurpassed  in  its  efforts  for  usefulness  in  all  this  country, 
unsurpassed  in  the  character  of  its  membership,  having  for  its 
President  the  Honorable  Seth  Low,  devoting  a very  considerable 
portion  of  his  life  to  its  work — it  is  unfortunate  that  this  man, 
against  whom  not  a breath  of  suspicion  even  in  his  private  life 
has  ever  been  uttered,  standing  as  the  President  of  the 
great  organization  known  as  The  American  Federation  of  Labor, 
representing  over  two  millions  of  citizens,  performing  what  he 
supposed  to  be  a duty,  should  be  picked  as  the  first  one  in  this 
country,  at  the  instance  of  a private  suitor,  to  be  sent  to  jail 
for  a period  of  a year — receiving  the  longest  sentence  that  in 
the  history  of  this  country  has  been  given  to  any  man  as  punish- 
ment for  contempt  of  court.  I need  not  say  to  your  Honors 
that  such  a result  would  be  unfortunate,  for  your  Honors 
know  well  that  it  would  be. 

It  is  not  only  necessary  that  justice  should  he  done , but  it  is 
for  the  best  interests  of  the  people  of  this  country  that  it  should 
at  the  same  time  seem  that  justice  is  done.  This  sentence  would 
be  most  unfortunate,  could  it  be  justified,  and  I shall  attempt 
to  show  it  cannot,  because  it  is  a most  extreme  sentence;  it 
would  be  most  unfortunate,  I repeat,  if  it  could  be  reasonably 
justified,  that  it  should  stand  unreversed,  because  there  will  be 
millions  of  people  who  will  never  feel  that  it  is  founded  on 
wisdom  and  conscience.  It  is  because  of  those  who  cannot 
understand  how  such  a sentence  can  possibly  be  just  that  makes 
it  so  important  for  the  courts  to  observe  the  appearance  of  justice 
while  doing  justice. 


6 


On  the  other  hand,  it  may  be  said  by  the  counsel  on  the  other 
side  that  there  is  to  be  found  now  and  then  in  this  record  and 
out  of  it  expressions  which  indicate  dissatisfaction  with  this  and 
other  decisions;  that  now  and  then  utterance  is  made  by  the 
representatives  of  organized  labor  in  which  they  speak  unappre- 
ciatively  of  Judge-made  law  and  as  if  statute  law  were  better. 
Well,  your  Honors,  there  are  to  be  found  those  expressions, 
both  by  laborers  and  representatives  of  labor,  and  in  their  making 
they  are  mistaken,  in  my  judgment.  I believe  that  our  system 
of  law,  which  has  developed  by  the  application  of  legal  principles 
to  new  conditions,  is  the  very  best  system  that  has  ever  been 
devised,  that  under  it  the  law  has  developed  to  meet  the  new 
and  constantly  changing  conditions  of  our  complicated  modern 
business  life,  and  that  courts  are  entitled  to  the  highest  praise 
for  the  conscientious  efforts  of  the  judges  to  so  mold  and 
develop  the  law  as  to  work  out  justice.  Yet  we  cannot  pretend 
that  errors  are  not  made.  Indeed,  many  are.  It  is  for  that 
reason  that  we  have  appellate  courts  who  may  sit  in  review  of 
the  decisions  hurriedly  made  by  judges  at  trial  and  equity  term — 
courts  that  have  the  advantage  of  more  careful  preparation  by 
counsel  with  the  advantage  of  consideration  of  the  questions 
presented  in  the  light  of  the  decision  of  the  court  below — courts 
that  are  composed  of  several  judges  who  have  the  opportunity 
of  a free  expression  of  views  to  one  another  around  the  consul- 
tation table — courts  the  members  of  which  do  not  hesitate  either 
to  differ  with  one  another  or  with  the  court  below  in  stating  the 
conclusion  which  they  reach  either  severally  or  collectively. 

But  it  must  be  borne  in  mind  that  men  unlearned  in  the  law  and 
not  acquainted  with  judicial  procedure  and  the  method  of  reaching 
decisions  do  not  always  take  the  judicial  and  the  correct  view 
of  errors  and  the  cause  of  them. 

Those  interested  in  the  cause  of  labor  realize,  as  do 
we,  that  there  always  has  been  and  always  will  be  a 
struggle  for  advantage  between  labor  and  capital,  each 
striving  for  a little  more  of  the  rewards  which  come  from  the 
combination  of  labor  and  capital.  It  has  always  been  so  and 
so  it  will  be  till  the  end  of  time.  Much  may  be  done  and  fre- 
quently is  done  by  the  representatives  of  each  and  those  who 
may  be  termed  outsiders  to  ameliorate  the  difficulties.  # But  they 
cannot  end  them.  The  condition  of  the  laborer  is  vastly  improved 
since  that  period  long  ago  when  a statute  of  England  forbade 
an  agreement  of  laborers  to  seek  higher  wages,  and  provided 
as  a penalty  for  a third  offense  against  the  statute  the  loss  of 
an  ear  and  to  be  held  as  a man  infamous.  In  my  judgment,  the 
improvement  that  has  taken  place  since  that  day  has  been  con- 
tributed to  in  very  large  measure  by  the  courts.  Still  it  should 
be  remembered  that  it  is  only  about  thirty  years  ago  that  in  the 
State  of  Massachusetts  men  were  convicted  for  conspiring  to- 
gether to  discontinue  their  employment — in  other  words,  to 
strike.  That  decision  was  swept  aside  by  the  Supreme  Judicial 


7 


Court  of  Massachusetts,  Chief  Justice  Shaw  writing,  in  the 
doing  of  which  there  was  established  a precedent  which  has  been 
accepted  and  followed  by  courts  of  this  country,  until  it  may 
now  be  said  to  be  the  law  of  the  land. 

In  numerous  other  cases  orders  have  been  made  by 
a single  judge  which  were  frequently  too  broad,  and 
did  during  the  term  of  their  existence  violate  the  rights 
of  those  affected.  And  it  is  equally  true  that  in  many  cases 
the  orders  were  corrected  on  appeal.  But  often  it  happened 
that  the  contestant  of  labor  in  the  litigation  gained  a most 
decided  advantage  in  its  contest  by  reason  of  gaining  the  first 
decision.  So  again,  another  and  very  recent  instance  is  to  be 
found  in  the  decree  in  the  very  case  out  of  which  this  contempt 
proceeding  grows,  for  it  has  already  been  determined  by  this 
court  that  the  decree  was  too  broad  and  that  it  violated,  as  the 
defendants  contended  that  it  did,  both  as  to  speech  and  writing, 
their  constitutional  rights.  True,  the  error  has  now  been  cor- 
rected and  in  the  orderly  course  of  procedure.  But  it  does  not 
require  argument  to  show  that  the  original  error  of  the  trial 
court  has  embarrassed  these  defendants  in  no  small  degree; 
and  yet,  of  course,  the  Judge  did  not  intend  to  commit  error 
and  is  undoubtedly  thankful  to  your  Honors  for  making  the 
correction. 

Because  errors  are  committed  by  those  learned  in  the 
law  and  charged  with  its  administration,  we  should  not 
be  surprised  that  the  victims  of  the  errors  and  unlearned 
in  the  law  look  for  that  greater  stability  which  it  seems  to  them 
the  statutes  afford.  At  least  their  misfortunes,  which  often  bias 
the  judgments  of  men,  should  be  accepted  in  mitigation  of  their 
sometimes  expressed  preference  for  statute  law.  Already  serious 
doubt  in  their  minds  has  arisen  as  to  the  correctness  of  early 
impressions,  for  in  this  very  case,  out  of  which  has  grown  the 
contempt  proceeding  which  is  now  before  your  Honors,  with 
which  I had  the  honor  to  assist  in  arguing  before  your  Honors 
some  time  ago  on  the  appeal  from  the  final  decree,  there  has 
come  a decision  accompanied  by  an  opinion  by  each  member  of 
this  court — opinions  that  show  independence  of  thought,  careful 
consideration  and  a keen  appreciation  of  the  questions  involved — 
questions  which  were  pressing  for  solution,  as  these  opinions 
show.  The  lesson  which  they  teach  will  not  soon  be  forgotten 
by  the  many  directly  or  indirectly  interested  who  shall  read  them. 
While  I must  admit  that  the  decision  is  not  in  all  respects  accept- 
able to  me,  and  must  say  that  if  it  were  still  an  open  question, 
I should  argue  again,  your  Honors,  in  favor  of  one  proposition 
as  to  which  you  reached  a decision  against  us,  yet  I do  not 
hesitate  to  assert  that  not  in  a long  time  has  there  been  for  the 
public  good  so  fortunate  an  event  as  the  writing  of  the  three 
opinions  in  this  case.  They  enable  me  to  say  to-day  to  one  of 
the  men  whom  I represent  that  although  not  deciding  all  we 
wished  and  hoped  for,  nevertheless  the  decision  blazes  a path 


8 


through  the  forest  which  will  be  trod  hereafter  by  many,  many 
judicial  decisions.  Just  precisely  as  many  decisions  to  the  advan- 
tage of  labor  have  followed  in  the  path  marked  out  by  Chief 
Justice  Shaw. 

If  your  Honors  please,  I am  going  to  treat,  if  I may,  of  the 
findings  which  have  been  made  against  my  clients  in  the  order 
in  which  the  facts  are  stated  in  the  petition.  I shall  take  up, 
first,  the  sixteenth  paragraph  as  it  appears  in  the  petition,  for 
this  paragraph  is  found  to  be  true  by  Judge  Wright.  You  will 
find  at  the  close  of  the  case  a decree  which  makes  certain 
recitals  of  fact,  seven  in  all,  although  they  are  not  thus  sub- 
divided therein.  The  decree  appears  on  pages  638-9  of  the 
Transcript  of  Record.  They  are  not  treated  in  exactly  the  order 
in  which  they  appear  in  the  petition,  and  perhaps  that  is  due 
to  the  fact  that  the  draftsman  thought  he  could  do  it  more 
briefly  in  the  way  in  which  he  has  done  it,  inasmuch  as  now 
and  then  there  is  a charge  against  Gompers  alone  and  then  one 
against  Gompers  and  Morrison  and  then  one  against  Gompers 
and  Morrison  and  Mitchell.  He  has  compressed  the  findings 
into  a single  page  and  therein  is  to  be  found  a summary  of  the 
facts  alleged  in  this  petition.  I shall  take  up  every  one  of  them 
as  there  referred  to,  taking  them  up  in  the  order  in  which  they 
appear  in  the  petition,  beginning  with  the  16th. 

Before  I do  that,  however,  I want  to  call  your  Honors’  atten- 
tion to  one  matter  which  comes  to  my  attention  as  I turn  over 
the  pages  to  look  at  the  decree,  and  that  is  that  this  is  a prosecution 
by  the  leader  of  the  forces  of  the  opposition  to  organized  labor 
as  will  appear  from  a statement  annexed  to  the  opinion  of  the 
learned  justice  below,  under  the  title  of  appendix  B.  There  are 
a few  sentences  I want  to  read,  because  those  sentences  Mr. 
Justice  Wright  thought  were  important  and  annexed  them 
to  his  opinion.  They  consist  of  an  interview  between  Mr.  Van 
Cleave  and  certain  representatives  o*f  organized  labor. 

I will  read  first  a sentence  from  page  631,  in  which  Mr.  Van 
Cleave  says : 

“We  are  members,  as  you  know,  of  the  Stove  Founders’  De- 
fense Association.  This  matter  of  a nine  hour  day  was  taken 
up  on  the  27th,  28th  and  29th  of  June,  1906,  between  the 
conferees  of  the  National  Metal  Polishers’  Union  and  the  con- 
ferees of  the  Stove  Founders’  Defense  Association.  They  spent 
three  days  on  this  subject,  in  Chicago.  The  result  of  it  was  that 
after  a good  deal  of  hallowing  and  bellowing,  they  could  not 
agree  and  the  matter  was  laid  over.” 

I turn  then  to  the  middle  of  page  633,  where  Becker,  who  was 
one  of  the  labor  representatives,  says : 

“If  I am  not  misinformed,  the  members  of  the  various  Pol- 
ishers’ Unions  throughout  the  country  only  work  nine  hours  per 
day. 


9 


“Mr.  Van  Cleave : That  may  be  true,  but  we  are  members  of 
the  Stove  Founders’  Defense  Association.” 

I turn  then  to  page  634,  a little  below  the  center  of  the  page, 
where  Kreyling  says: 

“I  have  not  heard  Mr.  Van  Cleave  give  any  reason  why  the 
Bucks  Stove  & Range  Company  refuses  to  grant  the  nine  hour 
day  only  that  you  claim  the  other  parts  of  the  foundry  are 
working  ten  hours. 

“Mr.  Van  Cleave:  All  of  our  competitors  in  St.  Louis  are 
working  ten  hours,  and  the  majority  of  our  competitors  in  this 
district  are  working  ten  hours,  and  besides  the  Defense  Associa- 
tion is  the  one  to  adjust  this  matter. 

“Mr.  Kreyling:  The  action  of  the  Defense  Association  leaves 
it  open  for  the  Metal  Polishers  to  come  to  any  final  conclusion 
on  the  matter  they  wish.  Now  we  certainly  will  grant  the  right 
to  any  local  organization  to  try  and  shorten  their  hours  if  there 
is  any  possible  chance  to  do  so. 

“Mr.  Van  Cleave:  I have  no  objection  to  any  shorter  hours.” 

I now  turn  to  the  middle  of  the  next  page,  635 : 

“Mr.  Kreyling:  Do  you  realize,  Mr.  Van  Cleave,  that  the 
request  of  the  Metal  Polishers  at  this  time,  and  has  been  since 
the  beginning  of  this  controversy,  is  the  nine  hour  day?  The 
point  is  this : The  Bucks  Stove  & Range  Company  are  not  willing 
to  grant  the  nine  hour  work  day  until  the  Defense  Association 
grant  it. 

“Mr.  Van  Cleave:  If  the  Defense  Association  agrees  to  the 
nine  hour  day  tomorrow,  I would  put  our  entire  shop  on  a nine 
hour  basis  at  once.” 

Then  I drop  down  to  the  bottom  of  page  635  and  read  as 
follows : 

“Mr.  Van  Cleave:  I will  grant  the  nine  hour  day  when  the 
Defense  Association  agrees  to  it,  and  will  make  the  entire  shop 
a nine  hour  day  shop  when  they  have  reached  this  decision,  and  I 
think  that  is  as  much  as  you  should  ask  of  me.  I am  not  unfair 
to  labor  at  all.  There  is  not  a man  in  this  country  that  appreci- 
ates his  workmen  more  than  I do.” 

Then  I skip  the  next  two  or  three  sentences  and  read  as 
follows : 

“Mr.  Kreyling:  We  are  responsible  for  our  actions,  if  not 
as  an  organization,  as  an  individual,  and  I am  willing  to  stand 
for  my  action  at  any  time.  We  will  take  it  for  granted  that  you 
absolutely  refuse  to  grant  the  nine  hour  day  at  this  time? 

“Mr.  Van  Cleave:  I will  grant  the  nine  hour  day  when  the 


10 


Defense  Association  does  so.  At  such  time  that  the  Defense 
Association  agrees  to  the  nine  hour  day,  we  will  put  our  entire 
shop  on  the  nine  hour  basis.  When  it  comes  to  a point  that  we 
agree  with  any  department  to  run  nine  hours,  then  we  will  put 
our  entire  foundry  on  that  basis.  Now  this  is  a fair  proposition 
to  me,  and  I cannot  in  honor  grant  it  as  long  as  I am  a member 
of  the  Defense  Association  under  present  conditions.  When  the 
Defense  Association  agrees  with  the  Metal  Polishers  to  a nine 
hour  day,  we  will  put  our  entire  shop  on  nine  hours.  That  is 
my  position.” 

I skip  again  two  sentences  and  read  as  follows : 

“Mr.  Kreyling:  It  is  not  the  fault  of  the  Metal  Polishers 
that  this  case  is  brought  against  the  Bucks  Stove  & Range  Com- 
pany. Your  foreman  tolerated  the  reduction  of  hours  in  your 
polishing  department  and  let  it  go  on  for  some  time. 

“Mr.  Van  Cleave:  If  the  foreman  does  things  contrary  to 
my  instructions  and  without  my  knowledge,  and  it  runs  on  for 
a short  time,  why  we  cannot  be  held  responsible  and  it  does  not 
establish  a fact  by  any  means.  I am  perfectly  willing  to  abide 
by  any  agreement  that  the  Defense  Association  may  enter  into 
with  the  Metal  Polishers,  and  it  would  not  make  a particle  of 
difference  to  me  if  they  entered  into  it  tomorrow,  but  until  they 
do  I am  not  in  a position  to  grant  the  nine  hour  day.  When  I 
heard  that  you  were  coming  in  here,  I had  hoped  that  I would 
come  in  contact  with  fair  men,  but  your  proposition  is  anything 
but  fair.” 

Turning  now  to  the  top  of  page  637  I read  as  follows : 

“Mr.  Kreyling:  Am  I to  understand,  Mr.  Van  Cleave,  that 
you  are  willing  to  arbitrate  this  proposition  ? 

“Mr.  Van  Cleave : The  Defense  Association  will  take  it  up. 
I cannot  take  it  up.  The  matter  was  discussed  in  June  with  the 
conferees  of  the  two  national  organizations.  They  did  not 
agree.  Now  then  certain  action  was  taken  and  then  the  Defense 
Association  stepped  in. 

“Mr.  Becker : Those  members  of  the  Defense  Association  who 
are  working  nine  hours  a day,  are  they  not  unfair  to  their  Asso- 
ciation ? 

“Mr.  Van  Cleave:  There  is  another  .point.  I will  show  it  to 
you.  If  this  matter  had  never  gone  to  the  Defense. Association 
or  if  I had  granted  the  nine  hour  day  last  year,  or  the  year 
before,  without  discussing  the  matter  of  taking  it  up  with  the 
Defense  Association,  then  I might  have  done  so,  but  having  once 
given  it  to  the  Defense  Association,  then  it  is  out  of  my  hands. 
I cannot  today  do  what  you  ask  me  to  do  without  stultifying 
myself  with  the  Defense  Association.  If  Mr.  Grout  wants  it 
done,  he  can  get  a conference  with  the  Defense  Association.  If 


11 


you  people  undertake  to  run  a boycott  and  injure  our  business 
here,  why  there  is  absolutely  no  fairness  in  your  proposition. 

“Mr.  Becker:  This  matter  would  certainly  adjust  itself  pro- 
vided you  were  willing  to  grant  the  nine  hour  day. 

“Mr.  Van  Cleave : I am  willing  to  grant  the  nine  hour  day 
provided  the  Defense  Association  agrees  to  it.  You  cannot 
force  this  company  to  run  nine  hours.  This  company  will  run 
ten  hours  as  long  as  its  competitors  in  the  district  do  so.  Those 
who  are  members  of  the  Defense  Association. 

“Mr.  Lucas : Regarding  what  you  say,  now  suppose  that  we 
were  starting  in  the  stove  manufacturing  business  and  would 
not  be  a member  of  your  association,  we  would  be  competitors 
of  yours.  Now  do  you  think  you  would  do  anything  to  help  us 
along,  or  would  you  do  everything  you  could  to  put  us  out  of 
business  ? 

“Mr.  Van  Cleave : My  friends,  the  relation  that  exists  be- 
tween myself  and  the  other  stove  companies  is  equivalent  to 
though  we  were  interlaced  stockholders.  We  do  not  try  to  put 
them  out  of  business.  Now  the  Metal  Polishers  say  that  we  are 
requiring  our  men  to  work  ten  hours  for  nine  hours’  pay.  That 
is  not  true.” 

So  your  Honors  see  that  which  you  probably  discovered  long 
ago  when  you  were  considering  this  case  on  the  main  appeal, 
that  this  is  a contest  between  leaders.  This  is  a contest  not  be- 
tween the  American  Federation  of  Labor  and  some  weak  manu- 
facturing establishment.  This  is  a contest,  as  you  can  see  from 
what  I have  read,  which  has  been  welcomed  by  Van  Cleave, 
the  President  of  the  National  Manufacturers’  Association,  the 
leader  of  the  great  capitalistic  forces  that  have  their  moneys 
properly  engaged  in  manufacturing  in  this  country;  a member, 
as  he  testifies  of  the  Defense  Association.  He  admits  that  these 
very  men  did  have,  for  a period,  the  nine  hour  day,  but  he  saw 
fit  to  repudiate  it  and  said  his  foreman  had  no  right  to  permit 
it.  He  thus  concedes  practically  that  the  change  of  situation  was 
unfair;  and  yet  he  welcomes  this  contest  rather  than  do  what 
it  is  apparent  he  could  do  if  he  saw  fit — arrange  this  matter  with 
the  Defense  Association. 

I refer  to  that,  your  Honors,  merely  for  the  purpose  of  pre- 
senting the  atmosphere  of  this  situation,  so  that  you  may  see 
that  this  is  not  to  be  treated  after  all  as  you  would  treat  a case 
where  the  Government  wTas  appearing  as  prosecutor.  As  Mr. 
Justice  Brewer  said  in  the  Bassette  case,  194  U.  S.,  324,  the 
real  purpose  is  to  help  out  a litigant.  The  basis  for  this  contempt 
proceeding  is  that  there  is  a disobedience  of  the  order  of  the 
court,  but  the  gainer  is  not  the  Government,  or  the  people,  but 
the  individual  who  is  engaged  in  the  contest  with  defendants. 
It  is  at  least  as  important  in  such  a case  that  it  shall  appear 


12 


beyond  a reasonable  doubt  that  there  has  been  a violation  of  the 
order  of  the  court  as  it  should  appear  when  the  man  stands 
charged  with  an  offense  against  the  law.  When  a decree  of 
the  court  is  operating  to  incarcerate,  to  deprive  men  of  their 
liberty,  it  should  appear  beyond  a reasonable  doubt  that  the 
offenses  charged  were  committed,  and  with  the  intent  to  violate 
the  order  of  the  court. 

After  the  date  of  the  order,  but  before  the  order  became  effec- 
tive by  the  filing  of  the  bond,  comes  first  charge  made  against 
Morrison  and  Gompers  and  Mitchell,  and  is  to  be  found  at  page 
12  of  the  transcript  of  record,  and  in  paragraph  XVI,  reading 
as  follows : 

“The  order  for  an  injunction  pendente  lite  having  been  passed 
on  the  18th  of  December,  A.  D.  1907,  and  the  injunction  having 
taken  effect  and  become  operative  on  the  23d  day  of  December, 
A.  D.  1900,  as  above  stated,  the  said  Samuel  Gompers,  as  will  be 
seen  by  reference  to  his  deposition  in  this  cause,  hastened  or 
rushed  the  publication  of  the  January,  1908,  issue  of  the  Ameri- 
can Federationist,  with  a view  to  circulating  the  same  during 
the  time  which  should  elapse  between  the  passage  of  the  said 
order  for  an  injunction,  and  the  injunction  order  itself.  The 
said  January,  1908,  number,  at  page  51,  includes  and  publishes 
in  full  the  ‘We  Don’t  Patronize’  or  ‘Unfair’  list  of  the  American 
Federation  of  Labor,  containing  the  name  of  petitioner;  and  at 
page  38  of  the  said  issue,  the  said  Samuel  Gompers  published 
the  following: 

“ ‘A  limited  number  of  the  American  Federationist  for  1907, 
bound  in  two  volumes,  may  be  had  on  application  to  this  office. 
The  1907  volumes  are  bound  in  the  same  style  as  the  preceding 
years. 

“ ‘The  official  printed  proceedings  of  the  Norfolk  Convention 
of  the  A.  F.  of  L.  are  now  ready  and  can  be  had  upon  application 
by  mail,  25  cents  per  single  copy,  $20  per  hundred.  Postage 
prepaid  by  the  A.  F.  of  L.’ 

“The  said  proceedings  of  the  Norfolk  Convention  contain,  at 
page  91,  the  name  of  petitioner  as  being  on  the  unfair  list  of  the 
American  Federation  of  Labor.” 

It  then  recites  that  notwithstanding  the  fact  that  the  injunction 
pendente  lite  has  taken  effect  on  the  23d  day  of  December,  1907, 
Gompers  and  Morrison  thereafter  continued  to  circulate  and 
distribute  that  issue  of  the  American  Federationist. 

There  is  no  opportunity  for  controversy  about  the  facts.  The 
fact  is  that  the  American  Federationist  was  rushed.  It  was 
printed  and  distributed  after  the  order  was  made,  but  it  was 
printed  and  distributed  before  the  order  became  effective  for  any 
purpose  under  the  decision  of  this  court.  The  order  was  made 
on  the  18th  day  of  December.  At  that  time  no  one  of  these 


13 


copies  of  the  American  Federationist  for  January  had  been 
issued.  It  is  usual  to  publish  on  the  24th  of  a given  month  the 
edition  bearing  the  title  of  the  succeeding  month,  and  so  on 
the  24th  day  of  December  there  would  have  been  issued,  in  the 
ordinary  course,  the  American  Federationist  for  January;  but 
instead  of  being  issued  on  the  24th  day  of  December,  it  was  as 
a matter  of  fact  issued  on  the  22d  day  of  December,  and  issued 
after  this  order  was  made  and  issued  with  knowledge  on  the 
part  of  Gompers  that  the  Court  had  rendered  this  decision. 

Your  Honors,  I have  thus  frankly  stated  this  to  you  in  order 
that  you  may  at  once  understand  our  position,  and  I present  it 
with  all  its  baldness  and  nakedness,  without  any  attempt  to 
apologize  for  any  part  of  it,  because,  your  Honors,  there  is  not 
to  be  found  in  this  record,  in  my  judgment,  any  other  opportunity 
for  discussion  even  of  a claim  that  Gompers  or  Morrison  violated 
any  provision  of  that  decree  as  your  Honors  say  it  should  have 
been  rendered.  There  is  not  to  be  found  anywhere  in  any  one 
of  these  findings  made  by  the  judge  a single  act  or  utterance 
of  Gompers  that  your  Honors  will  say  is  in  violation  of  the  decree 
as  it  has  been  rewritten  by  you,  unless  your  Honors  shall  say 
that  these  acts  I am  now  speaking  of  are  in  violation. 

Your  Honors  have  held  in  this  District,  in  Drew  against 
Hogan,  23  App.  D.  C.,  456,  that  there  can  be  no  contempt  of  an 
order  until  after  the  bond  has  been  filed;  that  it  is  not  effective 
until  the  bond  is  filed;  and  that  therefore  that  which  is  done — 
and  this  you  said  in  a contempt  case — which  violates  its  terms 
before  that  bond  is  filed  is  within  the  right  of  a person  to  do,  and 
hence  is  not  in  violation  of  such  order.  That  was  the  advice 
which  Samuel  Gompers  received  from  his  counsel,  ajnd  his  counsel 
gave  him  the  advice  on  the  strength  of  that  decision. 

Justice  Robb:  He  so  states  in  his  testimony?  Does  the  record 
show  that  he  received  that  advice? 

Mr.  Parker:  Yes,  sir. 

Mr.  Darlington : I think  counsel  is  in  error  about  that. 

Mr.  Parker:  How  is  that,  Mr.  Ralston? 

Mr.,  Ralston : I did  not  understand  what  you  said. 

Mr.  Parker : I said  that  this  Court  had  decided  that  the  order 
was  not  effective  until  after  the  bond  was  given,  and  that  Mr. 
Gompers  was  advised  by  his  counsel  that  the  distribution  prior 
to  the  giving  of  the  bond  would  not  be  in  violation  of  the  order, 
and  that  that  furnished  the  basis  for  his  consequent  action. 

Mr.  Ralston:  True  he  was  so  advised,  but  I do  not  remember 
what  the  record  shows. 

Mr.  Parker : I could  not  put  my  finger  on  the  place  in  the 
record,  but  I know  in  the  presence  of  Mr.  Ralston  and  Mr. 


14 


Gompers  this  has  been  said.  I think  it  is  in  the  record,  but  I 
could  not  find  it  at  this  moment. 

I shall  go  further,  your  Honors,  in  that  connection,  and  call 
your  attention  to  something  else  that  happened  here  that  will 
satisfy  you  that  it  must  be  true. 

Justice  Robb : It  certainly  has  a bearing  on  his  good  faith. 

Mr.  Parker:  Exactly,  and  I will  call  your  attention  to  other 
matters  in  this  same  connection  that  will  satisfy  you  that  must 
have  been  so. 

The  very  fact  that  it  was  hurried  shows  that  there  was  an 
intent  to  obey  the  order  of  the  Court  when  it  became  an  order. 
The  very  fact  that  the  name  “Bucks  Stove  & Range  Co.”  never 
again  appeared  in  the  “We  Don’t  Patronize”  list  of  the  American 
Federationist  shows  it  was  the  intention  of  Gompers  and  the 
others  to  obey  the  order,  and  it  never  again  did  appear,  your 
Honors,  in  the  “We  Don’t  Patronize”  or  “Unfair”  list  of  the 
American  Federation  of  Labor.  Then  and  for  the  last  and  the 
only  time  since  the  injunction  order  was  made  it  so  appeared. 

It  seems  to  me,  as  I have  considered  the  matter,  that  I should 
pause  and  say  to  your  Honors  that,  even  if  there  were  nothing  else 
— although  there  is  more  to  which  I shall  call  your  attention — 
this  fact  would  make  it  the  duty  of  your  Honors  to  say,  “He  did 
stop;  he  never  did  publish  it  again.  And  there  was  an  authority 
of  ours,  which  is  good  law,  which  justified  that  action.” 

It  was  precisely  as  if  a statute  should  be  passed  to  take  effect 
six  months  away,  say  on  the  first  day  of  September.  Of  course 
no  one  would  pretend  that  action  taken  on  the  31st  day  of 
August  violated  the  statute  taking  effect  the  next  day.  It  may 
well  be  that  in  the  intervening  period,  ethics,  some  sort  of  ethics, 
might  call  upon  a man  to  say,  “I  will  not  do  a thing  that  is  going 
to  be  illegal  after  the  first  day  of  September.”  But  when  the 
courts  come  to  consider  the  matter  legally  they  say,  “You  are 
not  bound  until  the  act  takes  effect.”  And  until  this  order  takes 
effect,  your  Honors  will  conclude,  I think,  that  he  was  not  vio- 
lating something  that  was  not  operative,  that  was  not  alive,  that 
did  not  exist.  But  you  will  find  in  the  fact  that  he  hurried  it 
up  a day  or  two,  an  intent  to  obey  the  order  of  the  court,  when 
and  as  soon  as  it  should  become  effective.  Of  course,  these 
monthly  publications  are  turned  over  to  the  printer  more  than 
fifteen  minutes  before  their  distribution  or  before  they  are  printed. 
Your  Honors  will  find  in  the  fact  that  he  hurried  to  get  it  into 
the  mails  before  the  bond  came  on,  and  then  never  again  printed 
or  published  it,  evidence  that  it  was  not  done  in  contempt  of 
this  order  or  with  intent  to  contemn  the  order.  Further  evidence 
in  that  direction  is  that  he  called  together  the  employees,  after 
the  distribution,  and  said  to  them  that  there  must  be  no  other 
or  further  distribution. 


15 


There  were  some  copies  distributed  after  the  23d.  If  I am 
right  in  my  recollection,  that  number  was  37.  It  so  appears  at 
one  page  of  the  record,  and  I know  of  nothing  to  the  contrary. 
My  recollection  is  that  the  number  was  thirty-seven  copies,  as 
given  by  the  testimony  of  one  witness,  but  those  were  not  sold 
in  the  ordinary  way.  The  testimony  explains  how  they  came  to 
go  out.  They  were  sent  to  institutions,  to  libraries,  that  made 
application  for  them,  to  lawyers,  and  so  on,  but  only  a few  in 
number.  They  were  not  sold  to  the  general  trade.  Of  course, 
your  Honors,  if  you  should  reach  the  conclusion  that  that  was  a 
technical  contempt,  you  would  hardly  hold  that  Mr.  Gompers 
should  be  punished  for  that  in  view  of  his  orders.  When  you 
read  this  record  you  will  make  up  your  minds  that  not  to  save 
himself  from  a year  in  jail  would  he  make  a statement  that  is 
not  true.  There  is  boldness  and  frankness  in  his  answers  through- 
out. Your  Honors  will  reach  the  conclusion  from  a study  of 
this  record  that  when  he  tells  you  that  he  gave  that  direction, 
and  that  there  was  that  other  distribution,  although  he  did  not 
know  it  until  after  it  was  all  over,  that  his  statement  is  true. 
But  you  will  then  go  further  and  say,  no  matter  if  he  was 
responsible  for  it,  these  thirty-seven  copies  were  not  issued  for 
the  purpose  of  furthering  a boycott.  Nobody  sends  out  a few 
copies  of  the  American  Federationist  upon  the  request  of  libraries 
and  institutions  and  so  forth  for  the  purpose  of  furthering  a 
boycott.  You  will  come  to  that  conclusion  the  more  readily  be- 
cause before  I finish  with  this  I shall  make  it  very  clear  to  your 
Honors,  I think,  that  there  is  not  any  opportunity  to  reach  the 
conclusion  that  Gompers  or  Mitchell  or  Morrison  intended  to  do 
anything  except  to  fight  in  the  courts  with  all  their  might  against 
an  order  which  they  and  their  counsel  believed  was  in  excess  of 
the  power  of  the  Court.  That  they  meant  to  do  and  did  do, 
but  further  than  that  they  did  not  intend  to  go  nor  did  they. 

This  brings  me  to  another  point  which  I wish  to  present  in 
this  connection,  and  it  has  a bearing  upon  every  one  of  the  alle- 
gations in  the  petition  and  findings..  If  it  were  possible  for  your 
Honors  to  take  a contrary  view  to  that  I have  indicated,  if  you 
could  possibly  reach  the  conclusion  that  what  happened  here 
constituted  a technical  contempt,  you  would  not  let  this  adjudi- 
cation stand,  in  my  judgment.  But  assuming  otherwise,  then  I 
come  to  the  proposition  that  so  much  of  the  decree  as  undertakes 
to  prohibit  the  distribution  of  the  American  Federationist,  with 
the  Bucks  Stoves  under  the  “We  Don’t  Patronize”  list,  is  void 
because  so  interwoven  with  other  void  provisions  as  not  to  be 
separable.  In  the  final  decree,  your  Honors  say,  by  Mr.  Justice 
Hobb: 

t “But,  we  think  the  decree  in  this  case  goes  too  far  when  it 
enjoins  the  publication  or  distribution  through  the  mails  or  other- 
wise of  the  Federationist  or  other  periodicals  or  newspapers  con- 
taining any  reference  to  complainant,  its  business  or  products, 
as  in  the  ‘We  Don’t  Patronize’  or  ‘Unfair’  list  of  the  defendants. 


16 


The  court  below  found,  and  in  that  finding  we  concur,  that  this 
list  in  this  case  constitutes  a talismanic  symbol  indicating  to  the 
membership  of  the  Federation  that  a boycott  is  on  and  should 
be  observed.  The  printing  of  this  list,  therefore,  is  what  the 
Court  sought  to  prevent;  but  the  decree  should  stop  there  and 
not  attempt  to  regulate  the  publication  and  distribution  of  other 
matters  over  which  the  Court  has  no  control.” 

Mr.  Justice  Van  Orsdel  said: 

“The  guaranty  of  freedom  of  speech  and  freedom  of  the  press 
was  placed  in  the  Constitution  to  prevent  Government  censor- 
ship as  practiced  at  that  time  in  many  of  the  Governments  of 
Europe.  That,  therefore,  which  was  placed  in  the  organic  law, 
to  accomplish  an  end  so  essential  to  the  freedom  and  welfare 
of  the  people  is  only  susceptible  of  qualification  by  judicial 
decree.  . . . The  sustaining  of  such  a decree  by  a court  of 

equity  would  violate  the  constitutional  rights  of  a citizen.  It 
would  mark  the  beginning  of  the  era  of  judicial  tyranny  by  the 
branch  of  the  Government  charged  with  the  duty  of  protecting 
the  citizen  in  his  constitutional  and  legal  rights.  The  clause  in 
the  Constitution  guaranteeing  free  speech  and  free  press  was 
placed  there  to  prevent  the  repetition  of  the  abuses  that  have 
grown  up  in  the  monarchies  of  Europe — Government  censorship 
of  the  press.  It  is  folly  to  assert  that  this  provision  of  the  Con- 
stitution is  a mere  inhibition  on  Congress  from  passing  any  law 
abridging  the  freedom  of  speech  and  the  freedom  of  the  press. 
It  forbids  Government  censorship  in  all  forms ; it  would  be 
difficult  to  conceive  of  a more  effective  method  of  establishing 
a Government  censorship  than  through  the  writ  of  injunction. 
For  the  violation  of  its  commands  the  contemner  can  be  dealt 
with  in  the  most  summary  manner,  tried,  adjudged  and  sentenced 
by  the  judge  whose  order  has  been  disobeyed.  The  right  of  a 
citizen  to  express  his  opinion  in  the  way  of  just  criticism  either 
orally  or  through  the  press  is  a privilege  that  cannot  be  abridged. 
This  right  is  as  essential  to  his  liberty  as  the  right  to  choose  his 
calling.  It  may  not  be  assailed  even  by  the  courts.  The  right 
is  equally  sacred  whether  recognized  individually  or  in  conjunc- 
tion with  others. 

“I  agree  fully  that  the  record  discloses  a state  of  facts  calling 
for  equitable  relief,  but  the  decree  of  the  Supreme  Court  of  the 
District  should  be  modified  so  as  to  apply  only  to  the  unlawful 
acts  of  the  defendants  as  established  by  the  record.  It  should 
only  restrain  the  conspiracy,  which  in  this  case  consists  of  the 
threatened  damage  to  the  person  having  business  dealings  with 
the  complainant  or  threats  directed  against  the  complainant  organ- 
ization which  tend  to  prevent  others  from  freely  conducting 
business  with  it.  The  publications  complained  of  not  being  in 
themselves  subject  to  equitable  restraint,  the  decree  should  only 
restrain  these  publications  as  of  incidents  to  and  in  furtherance 
of  the  conspiracy.” 


17 


The  learned  Chief  Justice  said: 

“Assuming  that  the  publication  of  the  Bucks  Stove  & Range 
Company  in  the  ‘We  Don’t  Patronize’  column  of  the  American 
Federationist  was  a step  in  the  formation  of  a conspiracy  to 
coerce  independent  dealers  into  refusing  to  have  further  busi- 
ness relations  with  that  company,  I cannot  agree  that  the  publi- 
cation can  be  restrained  for  that  reason.  Regardless  of  its 
character  or  purpose,  the  publication  is  protected  from  restraint, 
in  my  opinion,  by  the  first  amendment  of  the  Constitution,  which 
forbids  any  law  abridging  the  freedom  of  the  press. 

“For  the  reasons  given  I cannot  agree  with  the  terms  of  the 
decree  as  modified.  In  my  opinion,  it  should  be  modified  so  as 
to  restrain  the  acts  only  by  which  other  persons  have  been  or 
may  be  coerced  into  ceasing  from  business  relations  with  the 
Bucks  Stove  & Range  Company,  but  so  as  not  to  restrain  the 
publication  of  the  name  of  that  company  in  the  ‘We  Don’t  Pat- 
ronize’ columns  of  the  American  Federationist,  no  matter  what 
the  object  of  the  publication  may  be  suspected  or  believed.” 

I have  read  these  extracts  from  the  opinions  because  they 
show  your  Honors  in  accord  up  to  a certain  point.  You 
are  in  accord  at  least  in  this,  that  this  r provision  of  the  order 
was  too  broad,  and  you  are  in  agreement  that  in  the  breadth  and 
scope  of  that  order  it  offended  against  the  Constitution  of  the 
United  States.  A majority  of  you,  however,  agreed  that  equity 
may  interfere  with  any  act  that  may  be  said  to  tend  to  help  on 
a boycott,  when  its  purpose  is  to  further  boycott,  whether  it  be 
by  printing,  writing  or  speaking.  But  you  do  agree  that  that  is 
the  limit  to  which  such  an  order  may  go,  that  it  may  restrain 
publication,  provided  the  publication  is  in  furtherance  of  the 
boycott. 

Of  course  if  it  were  not  too  late,  I would  venture  to  suggest, 
while  it  may  seem,  at  first  blush,  perfectly  natural  to  reason 
that  as  equity  may  step  in  and  restrain  boycotts,  it  may  also 
restrain  all  the  incidents  and  steps  that  go  to  further  that  boy- 
cott, that  the  answer  to  my  mind,  your  Honors,  and  which  I 
respectfully  present  is  that,,  so  it  could  were  it  not  for  one  thing, 
namely:  The  Constitution  prohibits  abridgment  of  the  freedom 
of  press  and  speech.  When  the  Constitution  says  that  free  speech 
and  free  press  shall  not  be  abridged,  then  courts  and  Congress 
shall  halt. 

If  you  ask,  how  can  equity  stop  there?  Does  not  that  leave 
the  door  open  so  that  those  who  wish  to  violate  a decree  of  an 
equity  court  restraining  a boycott  can  go  right  on  and  violate 
it,  and  leave  equity  powerless  to  help?  No,  it  seems  to  me  that 
an  injunction  against  a boycott  is  just  as  effective  without  a viola- 
tion of  the  Constitution. 

Mr.  Justice  Van  Orsdel : Could  not  a boycott  be  conducted 
successfully  through  the  press? 


18 


Mr.  Parker : I do  not  know  but  it  might.  I am  not  prepared 
to  say  that  it  could  not  be,  but  what  I was  going  to  say  is  this : 
Here  is  this  decree  which  enjoined  these  people  from  further 
promoting  this  boycott.  Suppose  there  had  been  nothing  in  it 
at  all  about  printing  or  writing  or  speaking,  and  further  let  us 
assume  that  Gompers  and  Mitchell  had  continued  to  publish  the 
“We  Don’t  Patronize”  list  as  heretofore,  and  otherwise  advised 
the  prosecution  of  a boycott.  Then  the  boycott  continuing — 
these  publications  would  be  accepted  by  a court  as  evidence 
tending  to  show  a prosecution  of  the  boycott.  And  there  is 
nothing  at  all  to  prohibit  punishment  for  what  people  do,  through 
the  press.  It  is  only  previous  restraint  that  is  forbidden. 
A cou'rt  of  equity  can  take  that  very  publication  and  say : 
This  is  evidence  that  you  are  violating  this  portion  of  the  decree 
which  undertakes  to  prohibit  you  from  carrying  on  or  furthering 
a boycott.  That,  it  seems  to  me,  is  what  equity  could  do ; and  it 
would  be  quite  sufficient  for  its  purpose  and  have  the  advantage 
of  not  trespassing  upon  constitutional  guarantees. 

But  that  is  only  in  passing,  for  I do  not  intend  to  reargue  the 
question. 

I am  arguing  now  that  your  Honors  will  have  to  disregard  so 
much  of  the  order  as  offends  against  the  Constitution  of  the 
United  States,  so  much  as  undertakes  to  lay  upon  Gompers  and 
Mitchell  and  Morrison  a restraint  not  only  as  to  printing,  but 
as  to  writing,  talking  and  speakifig. 

My  proposition  now  is  this : That  so  much  of  that  decree  as 
relates  to  the  subject  of  writing,  printing  and  speaking  is  void 
because  in  excess  of  the  power  of  the  court.  For  that  I rely 
upon  the  decision  of  this  Court  for  one  of  my  authorities. 
(Elliott  v.  United  States,  23  App.  D.  C.  46.)  I shall  not  stop  to 
discuss  it  because  it  has  been  considered  by  this  Court,  and  also 
because  of  the  cases  in  the  Supreme  Court  of  the  United  States 
which  this  court  cites  in  support  of  its  position,  namely : that  one 
need  not  obey  an  order  which  is  void,  and  that  one  cannot  be 
punished  for  contempt  who  does.  I shall  not  stop  to  discuss 
that  question  or  the  authorities,  but  I say  your  Honors’  decision 
in  this  case  and  the  decisions  of  the  Supreme  Court  of  the  United. 
States  which  you  summon  in  support  of  it,  so  establish  the 
proposition  that  it  needs  no  further  debate.  But  how  could  there 
be  occasion  for  debate  when  the  question  was  first  brought  to 
the  attention  of  the  court?  Have  not  the  courts  held,  and  held 
ever,  that  an  act  of  Congress  which  violates  the  Constitution  of 
the  United  States  is  absolutely  void  and  need  not  be  obeyed  by 
anyone;  that  a person  may  treat  it  with  contempt,  taking  his 
chances  always;  and  if  it  shall  turn  out,  however  it  may  be 
attacked,  whether  in  a criminal  or  a civil  action,  collaterally  or 
in  any  other  way,  that  the  statute  is  unconstitutional,  the  fact 
that  a person  has  defied  it  brings  him  no  harm,  because  the  courts 
say  it  is  void.  There  does  not  exist  the  power  on  the  part  of 


19 


the  congress  to  violate  the  Constitution  by  any  enactment  that 
will  lay  for  one  moment  upon  any  citizen  any  mandate  that  the 
Constitution  says  he  shall  not  bear;  and  of  course  it  would  be 
absurd  to  argue  that  Courts,  whose  common  law  principles  may 
be  done  away  with  and  statutes  put  in  their  place  by  Congress, 
may  make  a decree  effective  for  any  purpose  which  absolutely 
offends  against  the  Constitution  of  the  United  States;  so  that 
the  man  who  violates  that  decree  violates  something  which  has 
vitality  and  force;  that  the  Court,  one  of  the  departments  of 
the  Government  which  upholds  the  Constitution,  is  above  and 
beyond  the  legislative  branch  in  that  its  decree,  although  in  its 
very  teeth,  may  be  enforced  even  by  imprisonment,  whereas  an 
act  of  the  Congress  upon  the  same  subject  may  not. 

If  the  proposition  had  never  been  before  your  Honors,  and 
there  was  an  act  of  Congress  containing  precisely  the  same  lan- 
guage which  is  in  this  decree  which  you  emasculated  on  the 
appeal  to  you,  your  Honors  would  have  said  it  is  void  and 
cannot  live,  and  a sentence  against  one  who  has  violated  it 
cannot  live,  and  cannot  be  enforced  by  the  criminal  courts.  If 
brought  to  you  on  habeas  corpus  your  Honors  would  have  said, 
it  cannot  stand,  it  is  void,  he  cannot  be  punished  who  disobeys  it. 

Of  course  if  it  were  entirely  a new  question,  you  would  not 
attempt  to  assume  that  the  decisions  of  the  court  below  or  your 
own -should  have  any  other  or  greater  force  or  effect. 

But,  as  you  may  say,  “We  have  not  held  it  all  to  be  void, 
therefore  one  defect  in  your  argument  is  that  you  are  now 
treating  every  bit  of  it  as  void,  and  yet  we  have  held  that  there 
may  be  a restraining  of  the  publication  of  the  name  in  the  ‘We 
Don’t  Patronize’  list  or  the  ‘Unfair’  list  if  done  in  furtherance 
of  the  boycott.”  “We  have  limited  it  to  that.”  “We  have  held 
that  thus  far  the  Constitution  is  not  offended  against.  What 
is  your  answer?  Can  you  say  as  a matter  of  law  that  this  order 
is  void  so  as  to  sweep  away  the  entire  order?” 

Yes,  your  Honors,  that  is  just  what  I intend  to  say.  I intend 
to  say  as  your  Honors  so  well  know,  that  it  is  perfectly  well 
settled  that  when  a statute  comes  before  your  Honors  that  con- 
tains one,  two,  three  or  four  provisions,  you  may  hold  that  one 
of  them  is  unconstitutional  perhaps,  and  sweep  it  away,  and  let 
the  others  live.  But  you  only  do  it  and  can  only  do  it  where 
the  valid  provisions  form  a perfect  and  complete  whole.  You 
cannot  emasculate  here  and  there  a word,  a phrase  or  a sentence. 
You  have  got  to  emasculate  the  unconstitutional  clause  in  its 
entirety,  and  then  if  the  other  sections  provide  for  a complete 
working  scheme,  your  Honors  may  say  that  may  live.  But  it  is 
more  often  that  the  whole  statute  dies,  because  unless  the  scheme 
is  perfect  and  could  have  met  the  purpose  of  the  legislators  with- 
out the  void  provisions,  it  will  not  be  allowed  to  stand. 

These  tests  more  often  come  up  in  cases  of  penalties.  In  a 
case  of  penalties  the  courts  hold  its  purpose  is  enforcement,  and 


20 


the  clause  as  to  penalties  offending  against  the  Constitution  may 
be  stricken  out  and  the  other  remain. 

All  the  offensive  provisions  in  this  case  which  have  so  attracted 
your  Honors’  attention  and  condemnation  that  you  have  elimi- 
nated them  are  so  interwoven  that  you  cannot  separate  them 
under  any  precedent  to  be  found  in  the  books. 

In  this  order  as  it  stands,  from  the  beginning  of  the  subject 
of  printing  down  to  the  very  end  of  it,  there  is  not  a period 
or  a semicolon,  and  no  one  reading  that  order,  your  Honors, 
would  be  of  the  opinion  that  its  purpose  was  solely  to  restrain 
the  printing,  issuing,  publishing,  etc.,  in  the  American  Federa- 
tionist  in  the  “We  Don’t  Patronize”  or  “Unfair”  list  of  the 
name  of  the  Bucks  Stove  & Range  Company  for  the  purpose 
of  furthering  a boycott.  There  is  no  man  who  can  read  that 
order  in  that  way. 

I had  intended  to  read  the  order  with  some  comment  on  it. 
but  I shall  not  stop  to  do  that  because  your  Honors  have  studied 
it  and  therefore  I can  safely  pass  it.  But  I repeat  again  that  that 
decree,  as  your  Honors  have  all  agreed,  exceeded  the  power  of 
the  court ; and  those  phrases  are  so  interwoven  that  such  a clause 
as  you  say  would  be  constitutional  cannot  be  found  in  it.  You 
must  read  it,  after  all,  and  you  will  read  it  as  others  have  read 
it,  and  as  my  friends  on  the  other  side  have  read  it.  You  will 
find  before  you  reach  the  final  disposition  of  this  case  that  my 
friends  have  read  it  to  mean  that  the  mere  publication  of  the 
order  of  Justice  Gould  offends  against  this  decree.  You  will 
find  that  the  publication  of  an  urgent  appeal  for  moneys  with 
which  to  carry  on  this  unequal  contest  against  a great  organiza- 
tion of  manufacturing  establishments  over  the  country,  unequal 
in  the  point  of  ability  to  get  money,  as  we  all  know,  in  which 
there  is  only  once  a reference  made  to  the  fact  that  this  decision 
has  been  made  in  the  Bucks  Stove  & Range  Company  case — 
that  that  appeal  for  funds  containing  a mere  recital  of  the  name 
pf  cpmplainant  constitutes  contempt  of  court,  a violation  of  this 
order. 

They  take  the  editorial  which  was  written  and  published  in 
the  February  number  of  the  Federationist,  to  which  I shall 
refer  briefly  in  a few  moments,  aimed  entirely  against  the  at- 
tempt to  restrain  free  speech  and  free  press,  and  not  at  all 
against  the  boycotting  provision  of  the  decree,  as  conclusive 
evidence  of  a violation  of  this  order ; and,  your  Honors,  they 
are  right  about  it.  There  is  no  way  in  which  these  defendants 
can  speak,  write  or  print  the  name  of  the  Bucks  Stove  & Range 
Company  in  connection  with  the  American  Federation  of  Labor, 
whether  in  an  appeal  for  funds,  or  by  a mere  printing  of  the 
order,  that  does  not  violate  the  terms  of  this  order,  and  my 
friends  are  justified  in  claiming  that  it  does  violate  it  in  terms. 

That  being  so,  it  seems  to  me  that  there  is  no  opportunity 
here  for  severance,  no  opportunity  for  elimination  of  some  por- 


21 


tions  of  this  part  of  the  order.  As  the  order  then  stood,  every 
part  of  it  was  so  interwoven  that  all  of  it  must  go.  It  then 
becomes  the  duty  of  the  court  to  say  so,  even  if  you  should 
disagree  with  me — and  I do  not  think  you  will — when  you  come 
to  examine  what  I have  already  called  attention  to  as  to  the 
intent  and  legal  effect  of  the  distribution  of  that  “We  Don’t 
Patronize”  list. 

Necessarily  you  will  reach  the  conclusion  that  the 
defendants  were  wounded  and  hurt  by  the  injunction 
and  decree  of  the  court,  and  that  they  believed  that 
the  Court  did  lay  upon  them  a heavier  hand  than  it  had  the 
power  to  lay  upon  them.  But  in  that  belief  your  Honors  share 
and  have  so  evidenced  by  your  opinion  and  decree.  So  if  you 
find  that  they  give  some  indications  of  .smarting  under  the  lashing 
they  have  received,  you  will  not  hold  it  against  them.  Your 
Honors  will  say : “That  is  human  nature.  These  men  are 
engaged  in  a great  battle  with  others,  and  if  the  result  of  the 
defeat — inasmuch  as  it  is  unjust  in  part,  for  that  is  unjust  which 
is  unconstitutional,  and  they  were  so  advised  by  their  counsel — 
was  to  arouse  them  to  strong  protest,  they  should  not  be  punished 
for  that.  All  we  are  going  to  search  this  record  for  is  to  see 
whether  they  have  undertaken  to  violate  the  valid  provisions  of 
that  decree,  which  should  have  been  enforced.” 

The  next  paragraph  to  which  I wish  to  call  your  Honors’ 
attention  is  the  17th,  reading  as  follows:  “Hereafter,  to  wit,  in 
the  February,  1908,  number  of  the  American  Federationist,  said 
Samuel  Gompers  in  the  editorial  columns  thereof,  under  his  own 
name,  published  a lengthy  article  concerning  the  said  order  at 
pages  98  to  105  inclusive,  and  the  said  Samuel  Gompers,  Frank 
Morrison  and  John  Mitchell  published  at  pages  112-13  of  the 
said  number  of  the  American  Federationist  what  they  denomi- 
nated an  ‘urgent  appeal’  signed  by  the  defendant  Samuel  Gompers 
as  President  and  the  defendant  John  B.  Lennon  as  Treasurer,  in 
the  course  of  which  they  said  that  the  order  was  an  invasion  of 
the  liberty  of  the  press  and  the  right  of  free  speech,  and  further 
stated  therein  that  ‘with  all  due  respect  to  the  court,  it  is 
impossible  for  us  to  see  how  we  can  comply  with  all  the  terms 
of  this  injunction,’  ” and  so  forth. 

They  complain,  as  a part  of  this  publication  of  February,  1908, 
that  it  published  the  order  of  Mr.  Justice  Gould.  I am  going  to 
pass  that.  I think  your  Honors  will  not  come  to  the  conclusion 
from  the  publication  of  that  order  that  it  was  published  for  the 
purpose  of  furthering  the  boycott.  Let  us  stop  a moment  and 
see  what  was  the  situation  when  this  February  number  came  out, 
which  was  on  the  24th  of  January.  The  defendants  had  been 
defeated  and  unexpectedly  defeated.  The  measure  of  their 
defeat  was  infinitely  greater  than  anything  they  had  ever  antici- 
pated or  could  have  anticipated  fairly,  I think.  From  their 
standpoint  the  injunction  and  decree  was  not  the  end,  but  the 


22 


beginning  of  the  struggle.  They  were  not  unmindful  that,  in 
the  contest  which  they  were  waging  and  had  been  waging  for  a 
number  of  years  for  the  purpose  of  advancing  the  wages  of 
men  to  the  end  that  they  and  their  families  might  have  a little 
more  comfort,  to  the  end  that  their  children  might  be  better 
educated  for  the  responsibility  of  the  citizenship  that  stands  in 
front  of  them — they  were  not  unmindful  that  those  who  employ 
labor  regretted  the  advance  which  had  been  made,  and  were  also 
not  unmindful  of  the  strength  of  their  foe,  Van  Cleave,  the 
President  of  the  Manufacturers’  Association.  So  while  they  did 
not  expect  so  drastic  an  outcome,  yet  when  it  came  it  was  clear 
to  them  that  the  battle  had  but  just  begun. 

But  they  had  to  have  moneys  to  carry  on  this  contest.  Their 
opponent  could  get  funds  easily.  It  is  so  difficult  for  the  courts 
to  understand  how  it  happens  that  organizations  of  capital  have 
such  a great  advantage  over  organizations  of  labor  in  the  con- 
tests between  the  two.  We  can  see  labor  out  in  the  open  appeal- 
ing for  expense  money  for  the  struggle,  because  it  cannot  get 
it  in  any  other  way.  On  the  other  hand,  we  know  that  alliances 
of  manufacturing  corporations  do  not  have  to  make  open  and 
public  appeal.  They  have  but  to  make  an  allotment  of  the 
amount  or  share  each  corporation  should  pay  toward  any  great 
contest.  But  labor  has  to  fight  in  the  open,  and  so  sometimes 
the  public  mind  and  occasionally  the  judicial  mind  obtains  a 
wrong  impression  as  to  which  party  is  the  aggressor.  It  is  not 
accurately  advised.  It  is  advised  of  what  the  one  party  is  doing 
in  this  battle,  for  of  necessity  its  advancing  and  charging  army 
can  always  be  seen,  but  it  is  not  advised  of  the  behind-the-parapet 
movements  of  the  other  army.  There  was  nothing  for  these 
people  to  do  but  to  go  openly  to  work  to  secure  money  so  that 
they  could  carry  on  this  litigation.  Hence  they  made  an  appeal 
in  the  American  Federationist  of  February  to  labor  for  voluntary 
contributions.  They  do  not  like  to  make  assessments.  It  is 
hard  w^ork  for  their  people  to  bear  them,  trifling  as  their  assess- 
ments are,  trifling  as  they  would  seem  to  you.  Yet  it  is  a 
burden.  So  they  devised  another  way.  I am  not  going  to  stop 
to  read  this  written  appeal,  though  it  is  short,  but  I want  to 
predict  that  when  you  come  to  read  it,  no  one  of  you  will  believe 
for  a moment  that  it  ever  occurred  to  any  member  of  the  Exec- 
utive Council  signing  it,  men  of  character,  capacity  and  ability, 
to  consider  the  matter  in  that  way.  They  all  signed  it,  not  in 
rebuke  of  the  court,  but  in  the  same  spirit  in  which  you  acted 
when  as  counsel  you  were  contesting  before  the  courts  and  were 
occasionally  defeated.  It  begins:  “To  all  organized  labor,  Greet- 
ing: Justice  Gould  of  the  Supreme  Court  of  the  District  of 
Columbia  has  issued  an  injunction  against  the  American  Federa- 
tion of  Labor  and  its  officers,  officially  and  individually.” 

The  next  paragraph  reads : 

“The  injunction  invades  the  liberty  of  the  press,  the  liberty  of 
speech.” 


23 


They  thought  it  was  true  then ; they  know  it  is  true  now  since 
your  Honors  have  spoken.  It  continues : 

“It  enjoins  the  American  Federation  of  Labor  or  its  officers 
from  printing,  writing,  or  orally  communicating  the  fact  that 
the  Bucks  Stove  & Range  Company  has  assumed  an  attitude  of 
hostility  toward  labor,”  etc. 

Then  it  refers  to  the  retaining  of  counsel,  the  action  of  the 
Norfolk  Convention,  and  then  says  in  conclusion:  “Because  of 
the  necessity  to  defend  the  fundamental  rights  of  free  speech 
and  free  press  of  the  working  people  today,  and  which  may 
involve  the  freedom  of  the  press  and  the  freedom  of  speech  of 
all  our  people  in  the  future,  we  appeal  to  all  unions  and  union 
members,  and  the  friends  of  justice  to  contribute  as  promptly 
and  as  generously  as  they  can,  in  order  that  a legal  defense  fund 
may  be  at  the  disposal  of  the  American  Federation  of  Labor  to 
defend  the  rights  of  labor,  and  the  rights  of  our  people  before 
the  courts.” 

Is  there  any  opportunity  for  anyone  to  read  that  and  believe 
that  its  purpose  was  any  other  than  it  purports  on  its  face? 
It  says,  “These  contributions  of  money  are  to  be  used  on  appeal, 
to  the  end  that  the  rights  of  labor  and  of  our  people  may  be 
defended  before  the  courts.” 

Take  the  editorial  published  in  that  same  issue.  I refer  to  it 
because  the  learned  Justice  in  the  court  below  attached  very 
much  of  importance  to  it. 

Mr.  Justice  Robb:  What  is  the  date  of  that  editorial? 

Mr.  Parker:  This  is  of  the  date  of  January  24th,  although 
it  is  the  February  number.  It  comes  out  on  the  24th,  I think.  The 
editorial  is  in  line  with  the  appeal  for  funds.  It  is  forcible.  It 
shows  a wound,  a smart.  It  is  in  the  original  record,  page  474. 

Mr.  Davenport:  You  mean  the  record  of  the  original  case? 

Mr.  Parker:  Mr.  Davenport  corrects  me.  It  is  in  the  record 
that  was  before  your  Honors.  You  have  really  two  volumes 
before  you. 

Mr.  Justice  Van  Orsdel : You  want  us  to  consider  the  record 
in  the  other  case  in  connection  with  the  record  in  this  case? 

Mr.  Parker : Yes ; it  is  made  a part  of  it.  The  editorial  begins 
by  saying,  “this  injunction  is  the  most  sweeping  ever  issued. 
It  is  an  invasion  of  the  liberty  of  the  press  and  the  right  of  free 
speech.” 

I want  your  Honors  to  note  now  an  assertion  that  I make 
and  that  I am  sure  will  be  vindicated  as  I go  along,  namely : that 
you  will  not  find  any  remark  in  this  editorial  that  the  order 
exceeds  the  power  of  the  courts  in  respect  to  restraining  a boycott. 


24 


Mr.  Justice  Van  Orsdel : Just  at  this  point  there  is  something 
running  through  my  mind,  though  it  may  not  amount  to  anything. 
Assuming  for  the  purpose  of  argument  that  none  of  these  things 
charged  constitute  technical  contempt,  standing  individually  and 
alone,  could  there  not  be  a contempt  committed,  it  taking  the 
sum  and  substance  of  all  these  matters,  they  would  bring  the 
order  of  the  court  into  contempt  with  the  members  of  the  Feder- 
ation of  Labor  by  innuendo  or  otherwise?  I mean,  taking  the 
whole  thing  together,  the  sum  total.  I do  not  know  whether  I 
make  myself  clear. 

Mr.  Parker:  I think  I do  understand  you. 

Mr.  Justice  Van  Orsdel : Taken  together  in  that  way,  the 
effect,  the  result,  would  be  to  bring  the  order  of  the  court  into 
contempt  with  the  membership  of  the  Federation  of  Labor. 
Would  that  constitute  a contempt? 

Mr.  Parker:  This  is  a proceeding  to  punish  for  contempt, 
and  the  purpose  of  punishment — the  main  purpose,  the  leading 
one,  is  to  enforce  the  order  (as  I read  from  Judge  Taft’s  decision 
but  a very  little  while  ago)  for  the  future.  The  punishment  is 
not  so  much  for  that  which  has  happened  as  it  is  to  assure  that 
the  order  shall  not  be  interfered  with  in  the  future.  That  is 
what  Judge  Taft  says  in  this  case  which  I have  quoted  from 
and  which  I have  read  to  your  Honors.  It  is  remedial.  It  is 
not  in  the  same  class  as  a contempt  of  court  which  is  committed 
in  the  presence  of  the  court,  where  one  assaults  an  officer  of  the 
court  in  its  presence.  That  contempt  the  court  punishes  at  once 
and  summarily.  This  is  a remedial  contempt  and  the  court 
would  pay  very  little  attention  to  it  if  it  were  no  longer  required 
as  a remedy.  You  will  find,  when  you  come  to  range  over  the 
cases  of  contempt,  that  there  is  very  little  encouragement  for 
punishment  unless  there  is  to  be  a helpfulness  to  the  party  prose- 
cuting the  action.  That  is  the  purpose  of  such  a proceeding.  I 
have  a case  in  mind  now — the  Besette  case,  194  U.  S.  in  which 
there  is  a very  interesting  discussion  of  this  subject  by  Mr. 
Justice  Brewer  and  which  tends  to  bear  out  my  contention. 

If  your  Honors  should  come  to  the  conclusion  that  no  one 
of  these  acts  was  in  disobedience  of  the  order  of  the  court,  then, 
of  course,  you  could  not  very  well  come  to  the  conclusion  that  all 
of  them  together  were.  If  your  Honors  should  say  that  the 
editorial  and  other  articles  were  not  written  with  the  purpose 
of  prolonging  the  boycott — the  prevention  of  which  was  the 
object  of  the  decree — your  Honors  would  not  be  able  to  say, 
and  you  would  not  feel  justified  in  saying,  “We  will  consider 
them  altogether  and  therefrom  draw  the  inference  of  intending 
to  further  the  boycott.” 

I am  going  to  satisfy  you  in  this  case,  if  I do  not  first  wear 
you  out,  that  you  cannot  read  these  articles  through,  including 
this  editorial,  and  believe  that  there  was  any  other  purpose  in 


25 


view  than  to  explain  this  situation  to  the  labor  organizations  in 
this  country,  alongside  of  the  urgent  appeal  to  the  end  that  they 
should  furnish  the  money  necessary  for  them  to  prosecute  the 
appeal.  You  will  not  be  able  to  say,  either,  when  you  look  at 
this  editorial,  that  his  purpose  was  to  be  offensive  toward  the 
judge.  I do  not  know  that  I conveyed  my  meaning  so  as  to 
answer  your  Honor,  but  I have  attempted  to  do  so.  He  says 
(continuing  to  read  editorial),  ‘‘this  injunction  is  the  most  sweep- 
ing ever  issued.  It  is  an  invasion  of  the  liberty  of  the  press 
and  the  right  of  free  speech.” 

Again,  he  says— and  this  is  the  clause  to  which  I ask  your 
Honors’  attention,  and  I ask  your  attention  to  it  having  in  mind 
the  point  of  view  of  the  defendants,  and  also  having  in  mind 
the  question,  which  is : “Was  he  intending  then  to  disobey  the 
order  of  the  Court?”  He  cannot  be  punished  for  anything  else 
here  but  disobedience.  He  says : “With  all  due  respect  to  the 
court  it  is  impossible  for  us  to  see  how  we  can  comply  with 
all  the  terms  of  this  injunction.”  I ask  you  to  rest  your  minds 
upon  paragraph  6,  because  his  meaning  is  plain.  The  next  sen- 
tence shows  what  he  meant.  It  was  not  that  he  did  not  propose 
to  obey  the  mandates  in  this  injunction  which  prevented  a boy- 
cott. You  will  find  nowhere  any  writing  by  him  or  anybody 
else  connected  with  the  American  Federation  of  Labor  suggesting 
that  they  propose  to  defy  the  court  on  the  subject  of  whether 
there  could  be  a boycott  or  not.  I will  read  the  sentence  so  you 
will  see  the  point  of  it,  because  it  is  the  one  to  which  my  friends 
attach  so  much  importance.  “With  all  due  respect  to  the  court,” 
said  Gompers  in  his  editorial,  “it  is  impossible  for  us  to  see  how 
we  can  comply  with  all  the  terms  of  this  injunction.”  He  meant 
to  comply  with  its  terms  generally,  as  you  will  see,  because  in 
this  very  number  of  the  Federationist  the  name  of  the  Bucks 
Stove  & Range  Company  disappeared  from  the  “We  Don't 
Patronize”  list,  and  not  again  from  that  down  to  this  time  has 
it  appeared. 

What  is  his  next  sentence?  So  that  there  could  be  no  mistake 
on  the  part  of  his  readers  as  to  what  feature  of  the  injunction 
he  could  not  comply  with  he  added,  “We  would  not  be  performing 
our  duty  to  labor  and  to  the  public  without  discussion  of  this 
injunction.”  “A  great  principle  is  at  stake.”  Your  Honors 
know  that  to  be  so.  We  can  only  defend  our  constitutional 
rights  by  asserting  them,  and  if  the  time  ever  comes  when  men, 
or  any  class  of  men,  refuse  to  discuss  encroachments  upon  their 
constitutional  rights,  refuse  to  submit  to  imprisonment  if  neces- 
sary that  constitutional  rights  may  be  asserted  and  preserved, 
then  the  beginning  of  the  end  of  our  institutions  has  come. 

Again  he  says,  “There  is  no  disrespect  to  the  judge  or  to  the 
court  when  we  state  with  solemn  conviction  that  we  believe  this 
injunction  to  be  unwarranted.”  He  did  so  believe.  It  was  legiti- 
mate for  him  to  state  it.  It  was  necessary  for  him  to  state  it  if 
he  was  to  gather  together  the  funds  necessary  to  bear  their  side 
of  this  contest  against  their  vigilant  and  wealthy  opponent. 

26 


Quoting  again,  “The  publication  of  the  Bucks  Stove  & Range 
Company  on  the  ‘We  Don't  Patronize’  list  of  the  American 
Federation  of  Tabor  is  the  exercise  of  a plain  right.  To  enjoin 
its  publication  is  to  invade  and  deny  the  freedom  of  the  press,  a 
right  which  is  guaranteed  under  our  Constitution.”  You  may 
disagree  with  his  conclusions,  but  you  will  not  disagree  with 
his  assertion  of  the  right  to  express  that  opinion.  Our  courts 
have  always  welcomed  decent,  legitimate  criticism ; have  always 
welcomed  difference  of  view.  The  courts  of  this  country  have 
never  taken  the  narrow  position  that  litigant  or  others  cannot 
challenge  their  decisions  and  especially  when  it  is  stated  that 
there  is  no  disrespect  intended  to  the  judges  or  the  court.  He 
stated  again  in  the  course  of  this  long  editorial,  which  I must  not 
stop  to  read,  “in  making  these  statements  we  are  not  indulging 
in  unjustifiable  or  disrespectful  criticism  of  the  judge  who  issued 
this  injunction.  We  assume  that  he  acted  in  accordance  with 
the  dictates  of  his  conscience  and  his  best  judgment.”  Is  there 
more  than  that  asked  or  that  can  be  asked  of  any  suitor,  or  any 
citizen?  However  widely  he  differs  with  the  court  he  is  able  to 
say,  “we  assume  he  acted  according  to  the  dictates  of  his  con- 
science and  his  best  judgment.”  How  can  criticism  be  more 
carefully  safeguarded  against  misunderstanding? 

I am  not  going  to  read  more  of  this  article.  I have  marked 
other  paragraphs  to  read,  but  time  is  flying  and  I must  omit 
them  with  this  general  statement.  There  is  not  any  halting  here 
in  asserting  his  position,  the  position  that  he  believed  in.  There 
is  no  disrespectful  allusion  to  the  court  in  it,  as  you  can  see  from 
the  two  phrases  I have  quoted.  There  was  no  feeling  of  dis- 
respect in  his  mind,  as  your  Honors  will  see  when  you  come  to 
read  this  editorial.  What  was  in  his  mind  was  that  the  court 
had  been  misled  as  courts  have  been  before ; that  the  court  had 
supposed  the  opponent  to  be  purely  a business  establishment 
instead  of  being  as  it  was  through  its  head  a party  to  a great 
controversy  between  labor  and  capital.  And  he  further  felt 
that  the  court  had  been  misled  as  to  the  scope  of  the  order  and 
had  gone  too  far,  and  thereupon  he  wrote  this  editorial  presenting 
this  situation  as  an  aid  to  an  appeal  for  money  that  they  might 
come  to  this  court  as  they  did.  And  his  judgment  was  vindicated. 

I assert,  your  Honors,  without  fear  of  contradiction,  that  when 
you  come  to  read  this  editorial  and  this  “urgent  appeal” — I go 
further,  and  defy  any  one  to  reach  the  conclusion  that  the  pur- 
pose in  writing  either  one  of  them  or  all  three  together  was  for 
the  purpose  of  defeating  the  lawful  portions  of  this  decree — I 
feel  confident  that  no  honest  mind  can  read  those  three  together, 
reading  them  dispassionately  for  the  purpose  of  ascertaining  the 
motive  of  writing,  and  say  after  he  finishes  the  reading,  “their 
purpose  was  to  further  this  boycott.”  If  you  reach  that  conclusion, 
of  course,  that  will  be  the  end  of  it.  You  cannot  possibly  consent 
to  the  ruin  of  an  exceedingly  useful  life  if  you  come  to  the 
conclusion  I have  stated. 


This  is  an  interesting  case  and  a most  important  one — more  far- 
reaching  in  its  results  than  any  that,  I venture  to  say,  has  ever 
been  presented  to  your  Honors.  We  know  how  ideas  grow  and 
spread  from  little  things.  We  know  that  socialism  is  sweeping  all 
over  Europe  in  labor  as  well  as  in  other  circles,  and  those  of  us 
who  have  kept  some  little  track  of  the  contests  within  labor  organ- 
izations in  this  country  know  that  the  socialistic  element  of  organ- 
ized labor  is  opposed  to  Gompers  and  Mitchell  and  Morrison 
because  the  latter  believe  in  the  American  idea,  because  they 
stand  for  the  protection  of  the  flag  and  the  Constitution.  So 
far  their  reign  has  been  successful. 

But,  your  Honors,  what  will  be  said  by  the  socialistic  element 
who  now  muster  half  a million  voters,  when  they  learn  that 
for  the  indulging  in  what  they  all  believe,  as  I believe,  was 
absolute  freedom  of  speech,  in  discussing  an  offensive  part  of 
this  order,  and  for  speaking  his  mind  and  for  speaking  it 
temperately  and  justly,  a year  of  imprisonment  was  the  penalty? 
Will  socialism  grow  within  the  ranks  of  labor?  Will  the  Ameri- 
can element  of  the  American  Federation  of  Labor  be  able  to 
continue  their  leadership  so  effectively  as  they  have  in  the  past? 
Will  the  growth  of  sentiment  among  newcomers  to  our  shores 
in  favor  of  the  protection  and  strengthening  of  our  institutions 
and  the  preservation  of  our  rights  as  citizens,  guaranteed  by 
the  Constitution  as  the  very  best  that  has  yet  been  conferred 
by  any  government  in  the  history  of  the  world,  continue?  The 
questions  answer  themselves. 

The  next  finding  I shall  consider  is  not  referred  to  in  the 
petition  at  all,  but  it  is  the  very  first  finding  which  the  judge 
makes  in  the  decree.  I shall  only  spend  a moment  on  it  because 
it  is  the  same  matter  printed  in  the  Federationist  and  just  con- 
sidered. Having  printed  this  editorial,  the  urgent  appeal  and 
the  order  in  the  American  Federationist  of  February,  from  which 
I have  been  reading  to  you,  they  then  made  a little  modification 
of  the  “urgent  appeal”  so  as  to  refer  to  the  editorial  and  sent 
the  two  out,  explaining  in  the  “urgent  appeal”  that  the  editorial 
would  give  the  reasons  for  this  “urgent  appeal”  for  moneys. 
So  if  you  reach  the  conclusion  which  I think  you  must,  as  to  the 
editorial  and  “urgent  appeal”  of  the  February  Federationist  that 
they  do  not  offend  against  the  decree,  you  must  reach  the  same 
conclusion  as  to  these  papers  because  they  are  the  same  thing. 

The  next  paragraph  to  which  I ask  your  Honors’  attention 
is  the  18th,  and  refers  specially  to  John  Mitchell.  This  para- 
graph charges  him,  first,  with  having  caused  to  be  published 
the  “urgent  appeal”  in  the  “Mine  Workers’  Journal,”  and  then 
it  presents  a resolution  which  was  passed  on  the  25th  of  Janu- 
ary, 1908,  at  the  19th  annual  convention  of  the  United  Mine 
Workers.  This  resolution  recites : “Whereas,  the  Bucks  Stove 
& Range  Company  of  St.  Louis,  Missouri,  have  taken  legal  steps 
to  prevent  organized  labor  in  general  and  the  officers  and  execu- 


28 


live  committee  of  the  A.  F.  of  U.  in  particular,  from  advertising 
the  above-named  firm  as  being  on  the  ‘unfair’  or  ‘we  don’t  pat- 
ronize’ list,  and,  Whereas,  by  the  issuing  of  such  an  injunction  or 
restraining  order  as  prayed  for  by  above  named  firm,  organized 
labor  will  be  deprived  of  one  of  its  most  effective  weapons,  and, 
Whereas,  J.  W.  Van  Cleave,  President  of  the  above  named  firm 
and  also  President  of  the  National  Manufacturers’  Association, 
stated  that  in  a few  years’  time  he  would  disrupt  organized 
labor,  Therefore,  Be  It  Resolved,  that  the  United  Mine  Workers 
of  America,  in  the  19th  annual  convention  assembled,  place  the 
Bucks  Stoves  and  Ranges  on  the  ‘unfair’  list,  and  any  member 
of  the  U.  M.  W.  of  A.  purchasing  a stove  of  above  make  be 
fined  $5.00  and  failing  to  pay  the  same  be  expelled  from  the 
organization.” 

It  was  charged  that  thereafter  Mitchell  caused  or  permitted 
the  official  report  of  the  proceedings  to  be  published,  including 
the  foregoing  resolution  and  the  action  taken  thereon  in  the 
United  Mine  Workers’  Journal,  and  also  caused  or  permitted  to 
be  published  therein,  on  January  9,  1908,  certain  comments  upon 
the  appellee  and  its  business  for  the  purpose  of  violating  the 
injunction  of  this  court,  which  publication  was  copied  by  a large 
number  of  other  labor  papers. 

Mr.  Justice  Van  Orsdel : Was  that  resolution  so  adopted  and 
circulated  after  the  injunction? 

Mr.  Parker:  Your  Honors,  this  resolution  was  adopted  by 
the  Mine  Workers’  Convention.  You  have  here  the  fact  merely 
that  John  Mitchell  was  the  president  of  the  Mine  Workers’ 
convention,  and  was  presiding  at  the  convention. 

Mr.  Justice  Robb:  Was  he  presiding  when  this  resolution 
was  introduced? 

Mr.  Parker:  I want  to  read  your  Honors  about  that  because 
that  to  my  mind  is  very  important. 

Mr.  Justice  Robb : I suppose  he  was  not  responsible  for  what 
the  convention  did  unless  he  participated  in  it. 

# Mr.  Parker:  Your  Honors,  this  matter  is  not  answered  spe- 
cifically and  yet  it  is  answered  as  specifically  as  it  could  be 
answered,  for  the  reason,  as  Mitchell  says  in  his  affidavit,  and 
as  he  said  before  the  Court,  he  has  no  recollection  whatever 
about  it.  I want  to  read  his  affidavit  because  it  is  stated  with 
great  care ; and  he  was  examined  by  Mr.  Davenport  subsequently, 
which  examination  I have  read.  There  is  not  any  man  who 
knows  John  Mitchell  that  would  believe  he  would  vary  a hair’s 
breadth  from  the  truth.  He  has  now,  of  course,  temporarily 
left  organized  labor  to  be  engaged  by  the  National  Civic  Fed- 
eration in  its  great  work.  He  has  been  selected  for  that  important 
work,  for  which  he  is  so  peculiarly  fitted.  If  there  was  any 
opportunity  to  doubt  John  Mitchell’s  word,  then  of  course,  you 


29 


would  have  to  find  that  he  was  at  that  convention  conscientiously 
presiding  at  the  moment  of  its  passage  and  made  no  protest. 
But  he  has  no  recollection  of  it,  and  you  must  bear  in  mind  that, 
as  appears  in  this  record,  this  man  had  been  very  ill  before  the 
convention.  It  is  a long  convention  and  the  strain  is  very  great. 
The  president  while  generally  presiding  is  not  always  presiding. 
He  is  stepping  from  one  end  of  the  platform  to  the  other,  as 
you  know  happens  in  all  conventions,  for  the  purpose  of  dis- 
cussing matters.  It  was  not  until  after  these  proceedings  were 
instituted  that  the  matter  ever  came  to  his  attention;  not  until 
then  did  he  know  that  any  such  resolution  had  been  passed.  It 
is  easily  understood.  Unless  objection  is  made  there  is  no  vote. 
The  chair  simply  says,  “If  there  is  no  objection  the  resolution 
will  stand  adopted.”  So  the  mind  of  the  president  may  be  occu- 
pied with  other  matters,  or  if  ill,  may  be  resting — until  some 
one  objects.  Then  he  pays  strict  attention.  Without  conscious- 
ness of  the  character  of  the  resolution  it  was  passed  in  his  pres- 
ence. Nor  was  he  responsible  for  its  publication  in  the  Mine 
Workers’  Journal.  His  evidence  is  that  he  had  not  anything 
whatever  to  do  with  it.  He  did  not  know  anything  about  it. 
Your  Honors,  there  is  nothing  here,  there  is  nothing  anywhere 
in  this  record,  to  justify  or  permit  anyone  to  doubt  John 
Mitchell’s  statement. 

Mr.  Justice  Van  Orsdel : Who  is  the  person  in  charge  of 
that  publication? 

Mr.  Parker:  They  have  an  editor. 

Mr.  Justice  Van  Orsdel:  And  Mr.  Mitchell  had  nothing  to  do 
with  the  writing? 

Mr.  Parker : He  had  nothing  whatever  to  do  with  the  writing. 

Mr.  Darlington : But  he  appoints  the  editor. 

Mr.  Parker:  But  he  did  not  appoint  him  every  day.  That 
is  the  attitude  which  our  people  have  had  to  meet  throughout 
this  case.  They  say  he  appointed  the  editor,  which  is  something 
he  might  have  done  about  a year  before,  and  therefore  you 
should  hold  him  for  it,  you  should  send  him  to  jail  for  a year, 
this  man  whose  character  is  not  inferior  to  that  of  anyone 
connected  with  this  case,  whose  standing  is  not  less,  and  whose 
influence  is  greater. 

Mr.  Justice  Robb:  Does  the  record  show  the  editor  submits, 
or  is,  under  the  practice  then  obtaining,  required  to  submit 
matter  to  Mr.  Mitchell? 

Mr.  Parker:  Nothing  of  the  kind,  and  it  stands  alone  here, 
so  far  as  I know,  in  the  record.  I remember  reading  a statement 
by  the  editor  which  I do  not  think  is  in  the  record.  There  is 
nothing  so  far  as  I now  recall.  Am  I right,  Mr.  Ralston? 


30 


Mr.  Ralston : You  are  entirely  right,  and  he  did  not  see  this 
particular  publication  until  months  after. 

Mr.  Parker : Here  is  his  affidavit  and  it  is  made  very  care- 
fully. It  states  that  he  took  no  active  part  whatever  in  causing 
the  matter  of  the  boycott  of  the  petitioner  to  be  submitted  to  the 
convention,  and  until  the  matter  was  brought  to  his  attention 
by  the  filing  of  the  petition  herein  he  did  not  know  that  the  subject 
had  been  acted  upon  by  the  convention  referred  to;  that  he  had 
nothing  to  do  with  the  publication  of  the  extracts  referred  to  in 
the  United  Mine  Workers’  Journal  of  January  9,  1908,  and  that 
his  first  knowledge  with  relation  thereto  was  obtained  after  said 
publication  was  made;  that  he  did  not  authorize  or  sanction  the 
publication  in  any  way;  that  it  is  possible  that  the  publication 
referred  to  was  followed  by  other  newspapers  throughout  this 
country,  but  that  this  respondent  neither  directly  nor  by  asso- 
ciation with  others,  had  connection  with  any  of  the  publications 
named  in  the  petition. 

Your  Honors,  this  was  followed  by  his  voluntarily  appear- 
ing and  being  put  on  the  stand  and  examined,  and  his  testimony 
stands  uncontradicted,  and  it  would  be  strange  indeed,  would 
it  not,  if  John  Mitchell,  with  his  caution,  should  do  that  one 
act  and  that  alone?  There  is  not  anything  else  in  these  findings 
or  in  this  record,  claimed  to  be  against  John  Mitchell  except 
this  editorial,  which  does  not  refer  at  all  to  the  “We  Don’t 
Patronize”  list.  There  is  not  anywhere  in  this  record  a sen- 
tence that  suggests  that  after  that  injunction  order  took  effect 
by  the  giving  of  that  bond,  anyone  ever  again  undertook  to 
threaten  or  coerce  anyone  who  dealt  with  the  Bucks  Stove  and 
Range  Company. 

I challenge  anyone  to  read  the  findings  to  which  I have  re- 
ferred, and  read  them  in  the  light  of  the  circumstances  to  which 
I have  directed  your  attention,  and  reach  the  conclusion  that 
the  purpose  was  to  further  the  boycott.  On  the  contrary,  the 
boycott  was  treated  by  them  as  dead  when  he  eliminated  the 
“we  don’t  patronize”  list,  which  he  did  in  the  very  first  edition 
after  the  injunction  order.  Never  again  did  it  appear. 

Your  Honors,  they  have  not  been  able  to  put  their  hand  on  any 
overt  act,  anything  said  or  done,  by  these  defendants  furthering 
a boycott,  and  that  fact  is  supplemented  by  this  other  most  im- 
portant one,  that  with  all  the  searching  made  throughout  this 
country,  hunting  for  every  little  thing,  finding  out  what  de- 
fendant said  in  speeches  in  Chicago,  New  York,  and  elsewhere, 
they  have  not  been  able  to  bring  to  your  Honors  evidence  of 
an  act  on  the  part  of  the  subordinates  even,  since  the  injunction 
order  took  effect,  which  constituted  a menace  or  a threat  against 
anyone  who  should  see  fit  to  purchase  of  the  Bucks  Stove  & 
Range  Company.  I am  going  to  pass  the  rest  of  this  article 
with  the  comment  already  made. 

Referring  to  the  publication  in  the  United  Mine  Workers’  Jour- 
nal of  January  9 of  the  resolution  of  the  convention  just  consid- 

31 


ered,  I should  say  that  the  affidavit  I have  read  covers  it.  Mitchell 
knew  nothing  about  it.  He  never  had  anything  to  do  with  it.  He 
was  not  there  where  this  journal  was  being  published.  He  did  not 
read  it  at  the  time.  He  was  away  from  the  place  of  publication 
at  the  time  and  had  nothing  whatever  to  do  with  it. 

Mr.  Justice  Robb:  Does  the  introduction  of  that  resolution 
and  the  publication  of  that  article  constitute  the  basis  for  the 
judgment  against  Mitchell? 

Mr.  Parker:  I should  say  that  there  is  nothing  else  whatever 
upon  which  there  is  any  opportunity  for  debate.  It  is  true  that 
the  trial  judge  in  the  first  place  finds  him  responsible  for  this 
editorial,  and  of  course  he  is  legally  responsible  with  Gompers 
for  that  editorial,  and  the  urgent  appeal  for  funds.  That  ap- 
peal was  signed  by  him  and  was  signed  by  all  the  other  mem- 
bers of  the  Executive  Council,  and  by  inference  the  editorial 
was  made  a part  of  the  “urgent  appeal.”  They  could  not  hope 
to  get  money  enough  to  make  a fight  unless  they  sent  out  that 
appeal.  For  the  editorial  he  was  therefore  probably  responsible. 
You  will  find  on  the  top  of  page  639  the  “Urgent  Appeal”  and 
the  finding  is  that  on  the  24th  day  of  January,  1908,  while  the 
injunction  pendente  lite  was  pending,  they  sent  out  certain 
“papers.”  Those  “papers,”  which  I have  referred  to  already — 
consisted  of  the  editorial  of  February  and  the  “urgent  appeal” 
for  funds,  the  editorial  being  attached  to  the  urgent  appeal  which 
was  signed  by  all  the  members  of  the  Executive  Council  and 
then  sent  out  in  order  to  raise  funds.  Those  are  the  papers  there 
referred  to.  It  seems  to  follow,  therefore,  that  Mitchell  is 
equally  responsible  for  these  papers  with  Gompers  and  with  Mor- 
rison. 

But  your  Honors  will  find  when  you  come  to  read  them  that 
they  do  not  offend  against  the  legal  portion  of  the  order.  And 
further  that  no  court  has  the  power  to  restrain  the  writing  or 
publishing  of  anything  therein  contained.  Again,  he  finds  that 
Morrison  and  Mitchell  are  guilty  of  the  acts  charged  in  para- 
graphs 17  and  26  of  the  complaint. 

Paragraph  17  is  the  one  to  which  I have  already  brought  your 
attention.  That  is  practically  the  same  thing  as  the  publication 
of  the  editorial  and  the  urgent  appeal  in  the  American  Federa- 
tionist.  I think  the  other  was  the  sending  out  of  the  urgent 
appeal  for  funds  and  the  editorial  attached  to  it  to  the  various 
members  of  their  labor  family,  and  is  the  one  to  which  I have 
just  referred  you.  Those  are  the  only  findings  of  fact  which 
are  charged  as  against  John  Mitchell.  I would  say  with  confi- 
dence that  as  to  the  editorial  and  the  urgent  appeal,  there  is  no 
opportunity  whatever  to  punish  for  those  because  they  do  not 
violate  the  spirit,  nor  are  they  intended  to  violate  the  spirit  of 
the  injunction,  nor  to  assist  in  the  boycott.  Nobody  can  conclude 
otherwise  from  their  reading.  It  finally  comes  down,  so  far 
as  Mitchell  is  concerned,  to  the  action  or  rather  non-action  on  his 


part  at  the  convention  to  which  I have  just  called  attention. 
With  all  this  man’s  character  behind  his  careful  statement,  with 
nothing  in  the  record  or  otherwise  to  contradict  the  impression 
he  would  produce  that  he  was  not  then  conscious  of  the  resolu- 
tion or  its  character,  his  statement  must  be  accepted,  it  seems 
to  me.  I urge  you  to  accept  it  because  its  source  is  a guarantee 
of  its  truth.  If  he  had  taken  part  in  it  directly  or  indirectly  it 
would  have  been  absolutely  inconsistent  with  everything  else 
that  he  did.  It  is  indeed  passing  strange  that  his  non-action  in 
that  convention  should  be  the  one  thing  upon  which  they » at- 
tempt to  build  his  ruin  and  his  incarceration  for  nine  months. 

The  19th  paragraph  refers  solely  and  alone  to  an  editorial 
written  by  Mr.  Gompers.  Your  Honors,  this  is  an  editorial 
squib  which  appears  between  the  editorial  and  the  signed  state- 
ment, but  neither  the  editorial  nor  the  signed  statement  had 
anything  to  do  with  the  Bucks  Stove  case.  The  editorial  related 
solely  to  the  Hatters’  case  and  the  discussion  of  the  Hatters’ 
decision.  The  Bucks  Stove  case  was  not  referred  to  in  that 
editorial  from  beginning  to  end.  Then  the  statement  signed  by 
Samuel  Gompers  follows  close  after  this  squib,  which  appeared 
between  the  two,  and  that  related  to  the  same  subject.  Neither 
one  of  them  had  anything  to  do  with  this  subject.  Tet  me  read 
it.  It  is  just  as  you  find  little  squibs  sometimes  on  editorial 
pages.  It  is  at  the  bottom  of  page  17  of  the  record.  “It  should 
be  borne  in  mind  that  there  is  no  law,  aye,  not  even  a court 
decision,  compelling  union  men  or  their  friends  of  labor  to  buy 
Bucks  stoves  or  ranges ; no,  not  even  to  buy  a Toewe  hat.”  This 
was  in  March,  1908. 

I need  not  say  to  your  Honors  that  this  is  good  law.  I read 
almost  that  very  language  in  the  opinion  of  Mr.  Justice  Robb, 
and  I take  it  it  is  sound  law.  I pass  it  with  the  observation  that 
the  statement  is  true  and  permissible;  and  renewing,  but  not 
repeating,  the  argument  already  made,  that  if  it  can  be  said 
to  be  in  violation  of  any  portion  of  the  order,  so  much  of  that 
order  as  it  relates  to  is  void.  But  your  Honors,  in  asserting 
this  he  made  a mere  statement  of  fact.  The  contest  was  still 
on.  They  had  not  raised  the  needed  moneys  yet.  They  could 
not  drop  this  subject  in  a moment;  they  could  not  treat  this  as 
a dead  case.  They  had  stopped  the  boycott  as  they  were  com- 
manded. They  were  obeying  the  spirit  of  the  injunction.  The 
boycott  was  no  longer  being  prosecuted,  Mr.  Gompers  so  testi- 
fied. They  could  not  abandon  consideration  of  this  subject. 
They  could  not  fail  to  keep  the  matter  alive.  Put  yourself  in 
their  place.  That  is  a fair  test  for  a judge  where  he  can  do  it. 
What  would  you  do  if  you  were  attempting  to  carry  on  a fight 
which  you  believed  was  absolutely  right  and  you  had  to  have 
money  to  do  it?  I will  not  attempt  the  answer  which  I am  sure 
you  will  make.  No  man  should  be  punished  for  contempt  who 
asserts  merely  that  which  he  has  a right  to  assert  and  for  the 
assertion  of  which  the  Court  had  no  right  to  previously  restrain 


33 


him.  If  by  any  possibility  it  could  be  done  it  ought  not  to  be 
done  when,  as  you  will  know,  after  the  examination  of  every 
one  of  these  matters,  that  his  purpose,  after  all,  was  to  raise 
funds  to  carry  on  this  contest. 

That  is  all  there  is  of  which  fault  is  found  in  paragraph 
19.  But  it  has  been  solemnly  found  as  a finding,  and  constitutes 
a part  of  the  foundation  upon  which  the  court  has  based  its 
determination  that  defendant  must  suffer. 

The  next  is  the  20th,  practically  the  same  thing  as  the  19th. 
This  is  an  editorial  published  in  April,  and  it  says : “The  tem- 
porary injunction  issued  by  Mr.  Justice  Gould  in  the  Court  of 
Equity  in  the  District  of  Columbia  in  the  Bucks  Stove  and 
Range  Company  of  St.  Louis  against  the  American  Federation 
of  Labor,  its  officers  and  all  others,  has  been  made  permanent. 
The  case  will  now  be  carried  to  the  Court  of  Appeals  of  the 
District  of  Columbia/’  So  far  a mere  recital  of  a fact  of  great 
interest  to  the  readers  of  this  magazine.  The  learned  justice 
below  seemed  of  the  opinion  that  Gompers  ought  to  be  punished 
for  it,  and  he  finds  it  as  one  of  the  important  acts  justifying 
punishment.  And  it  is  part  of  the  matter  that  my  friends  think 
he  should  be  punished  for  publishing.  Again  the  article  con- 
tinues : “It  should  be  borne  in  mind  that  there  is  no  law,  aye, 
not  even  a court  decision,  compelling  union  men  or  other  friends 
of  labor  to  buy  a Bucks  stove  or  range ; no,  not  even  to  buy  a 
Loewe  hat.”  And  in  the  official  column  of  this  issue,  over  their 
signatures,  appears  this:  “Bear  in  mind  that  an  injunction  issued 
by  a Court  in  no  way  compels  labor  or  labor’s  friends  to  buy 
the  product  of  the  Van  Cleave  Stove  and  Range  Company  of  St. 
Louis. 

“Fellow  workers,  be  true  and  helpful  to  yourselves  and  to 
each  other.  Remember  that  united  effort  in  cause  of  right  and 
justice  must  triumph.” 

It  was  said  in  one  of  the  opinions  of  this  Court: 

“I  conceive  it  to  be  the  privilege  of  one  man  or  a 

number  of  men  to  individually  conclude  not  to  patronize  a certain 
person  or  corporation.  It  is  also  the  right  of  those  men  to  agree 
together  and  to  advise  others  not  to  extend  such  patronage.  That 
advice  may  be  given  by  direct  communication  or  through  the 
medium  of  the  press,  so  long  as  it  is  neither  in  the  nature  of 

coercion  or  a threat.  No  one  doubts,  I think,  the  rights  of  the 

members  of  the  Federation  to  refuse  to  patronize  employers 
whom  it  regards  as  unfair  to  labor.  It  may  procure  and  keep  a 
list  of  such  employers,  not  only  for  the  use  of  its  members  but 
as  notice  to  other  friends  that  the  employers  whose  names  appear 
therein  are  unfair  to  labor.  This  list  may  not  only  be  procured 
and  kept  available  for  the  members  of  the  association  and  its 
friends,  but  it  may  be  published  in  a newspaper  or  series  of 
papers.  To  this  extent  they  are  within  their  constitutional 
rights,  at  least  where  a court  of  equity  cannot  intervene.”  As 


34 


the  Chief  Justice  said,  “this  being  lawful  for  one  person . to  do  it 
does  not  become  unlawful  for  two  or  more  persons,  impelled 
by  like  motive,  voluntarily  agreeing  to  do  the  same  thing, 
consequently  the  persons  composing  the  officers  of  the  American 
Federation  of  Labor  had  a legal  right  to  agree  together  not  to 
purchase  the  goods  of  the  Bucks  Stove  & Range  Company,  and 
to  refuse  to  purchase  those  goods  does  not  constitute  a boycott 
in  the  legal  sense.” 

This  is  no  new  doctrine.  As  was  said  by  Judge  Caldwell  in 
Ames  vs.  the  Union  Pacific  Railroad  Company,  “organized 
labor  is  organized  capital.  It  is  capital  consisting  of  brains  and 
muscle.  If  it  is  lawful  for  the  stockholders  and  officers  of  a 
corporation  to  associate  and  to  confer  together  for  the  purpose 
of  reducing  the  wages  of  its  employees,  or  of  devising  other 
means  of  making  their  investments  more  profitable,  it  is  equally 
lawful  for  organized  labor  to  associate,  consult  and  confer  with 
a view  to  maintaining  or  increasing  wages.” 

On  this  subject  of  the  organization  of  labor  no  one  has  spoken 
more  clearly  or  acceptably  than  Judge  Taft  in  the  case  of  Thomas 
vs.  Cincinnati,  where  he  says : 

“Now,  it  may  be  conceded  in  the  outset  that  the  employees 
of  the  receiver  had  the  right  to  organize  into  or  to  join  a labor 
union,  which  should  take  joint  action  as  to  their  hours  of 
employment.  It  is  of  benefit  to  them  and  to  the  public  that 
laborers  should  unite  in  their  common  interest  and  for  lawful 
purposes.  They  have  labor  to  sell.  If  they  stand  together 
they  are  often  able,  all  of  them,  to  command  better  prices  for 
their  labor  than  where  dealing  singly  with  rich  employers,  be- 
cause the  necessities  of  the  single  employee  may  compel  him 
to  accept  any  terms  offered  him.  The  accumulation  of  a fund 
for  the  support  of  those  who  feel  that  the  wages  are  below 
market  prices  is  one  of  the  legitimate  objects  of  such  an  organ- 
ization. They  have  the  right  to  appoint  officers  who  shall  advise 
them  as  to  the  course  to  be  taken  by  them  in  regard  to  their 
employment  or  if  they  choose  to  repose  such  authority  in  any 
one,  may  order  them,  on  pain  of  expulsion  from  their  union, 
peaceably  to  leave  the  employ  of  their  employer  because  any  of 
the  terms  of  their  employment  are  unsatisfactory.” 

Paragraph  21  relates  to  remarks  made  by  Mr.  Gompers 
on  the  19th  of  April  in  the  course  of  a public  address  to  a large 
gathering  of  working  people  in  the  city  of  New  York.  Mr. 
Gompers  does  not  deny  making  this  speech.  How  they  got  it 
and  whether  it  is  accurate  or  not  of  course  he  cannot  tell,  but 
that  he  made  a speech  of  that  general  character  and  made  it 
extemporaneously  and  made  it  on  April  19th  he  knows  is  true. 
Whether  he  made  it  word  for  word  he  does  not  know,  but  he 
does  not  deny  it  because  he  does  not  know.  There  is  not  any- 
thing in  it  that  he  has  occasion  to  deny.  “They  tell  us,”  he  said 


in  this  speech,  “that  we  must  not  boycott.  Well,  if  the  boycott 
is  illegal,  we  won’t  boycott.”  That  is  what  he  told  these  people. 
He  did  not  tell  them  to  go  on  and  boycott.  Of  course  Mr. 
Gompers’  idea  then  of  the  possibilities  of  what  was  meant  by  this 
decree  as  to  boycott  is  very  different  from  what  his  idea  is  now 
after  hearing  the  opinions  of  this  Court,  from  one  of  which  I 
take  this:  “From  this  clear  distinction  it  will  be  observed  that 
there  is  no  boycott  until  the  members  of  the  organization  have 
passed  the  point  of  refusing  to  patronize  a person  or  corporation 
themselves,  and  have  entered  a field  where  by  coercion  and 
threats  they  prevent  others  from  dealing  with  such  persons  or 
corporations.”  I fully  agree  with  this  distinction.  So  long  as 
the  American  Federation  of  Labor  and  those  acting  under  its 
advice  refuse  to  patronize  the  complainant,  the  combination  had 
not  arisen  to  the  dignity  of  an  unlawful  conspiracy  or  boycott. 

It  is  therefore  the  boycott  thus  defined  with  which  we  are  here 
dealing  and  not  the  events  that  led  to  it.  Hence  all  that  can  be 
restrained  are  the  acts  which  constitute  the  boycott.  I shall  not 
stop  to  read  that  article  your  Honors.  I submit  it  to 
you.  You  will  not  find  anything  in  it  inconsistent  with  the  state- 
ment, “well,  if  the  boycott  is  illegal  we  won’t  boycott.”  There  is 
a discussion  about  boycott.  It  is  a rambling  talk.  He  tells  them 
where  the  word  “boycott”  comes  from.  But  you  will  see  from 
the  beginning  to  the  end  of  it  there  was  no  design  whatever  to 
stimulate  the  boycott,  to  assure  anybody  that  a boycott  was  on, 
to  help  on  a boycott,  or  to  affect,  directly  or  indirectly,  the 
result  otherwise  than  it  should  stimulate  the  people  there  possibly 
to  contribute  toward  carrying  on  the  contest. 

Thereupon,  at  12.30  o’clock  p.  m.,  the  Court  took  a recess 
until  1 o’clock  p.  m. 


AFTER  RECESS. 

Mr.  Parker : If  your  Honors  please,  before  I take  up  the 
subject  under  discussion,  I want  to  refer  to  a motion  that  our 
friends  have  made  here  and  to  express  my  views  concerning  it 
very  briefly.  I have  not  seen  the  moving  papers,  but  I understand 
that  they  have  made  a motion  to  dismiss  the  appeal,  on  the 
ground  that  it  is  not  appealable.  It  has  seemed  to  me  that 
that  was  true,  at  the  time  of  Lamon  vs.  McGee,  7th  Mackay, 
447 ; but  since  that  time  came  the  code,  which  relates  specifically 
to  the  District  of  Columbia.  Your  Honors  know  all  about  it; 
but  inasmuch  as  the  motion  is  made,  you  will  excuse  me  for 
referring  to  it.  Section  226  provides : 

“Jurisdiction — Any  party  aggrieved  by  any  final  order,  judg- 
ment, or  decree  of  the  Supreme  Court  of  the  District  of  Colum- 
bia, or  of  any  justice  thereof,  including  any  final  order  or 


36 


judgment  in  any  case  heard  on  appeal  from  any  justice  of  the 
peace,  may  appeal  therefrom  to  the  said  Court  of  Appeals  and 
upon  such  appeal  the  Court  of  Appeals  shall  review  such  order, 
judgment  or  decree,  and  affirm,  reverse,  or  modify  the  same  as 
shall  be  just,  except  as  provided  in  the  following  sections” — 
which  do  not  apply. 

Any  party  aggrieved  by  any  final  order — this  is  a final  order. 
There  are  cases  in  which  orders  in  contempt  proceedings  are 
spoken  of  as  intermediate  orders.  Under  the  Federal  practice, 
those  were  orders  where  the  proceedings  were  instituted  upon  a 
trial,  and  before  a decree  is  entered.  This  final  decree,  which 
your  Honors  will  review,  was  entered,  appealed  from  and  dis- 
posed of  independently  of  these  proceedings.  This  proceeding 
was  instituted  after  a final  decree  and  not  before,  and  after  its 
appeal.  It  is  a proceeding  instituted  upon  the  petition  of  the 
Bucks  Stove  & Range  Company,  and  is  a separate  and  inde- 
pendent proceeding.  In  the  State  of  New  York  it  would  be 
known  as  a special  proceeding.  The  order  by  which  it  was 
disposed  of  was  a final  order,  in  that  proceeding.  It  stands 
alone  and  is  prosecuted  to  the  end  by  itself,  entirely  independent 
of  the  other  proceeding.  It  is  an  independent  proceeding  grow- 
ing out  of  the  so-called  attempt  to  enforce  a decree  in  the  equity 
action  and  the  order  which  is  entered  in  it  is  just  as  final  and 
appealable  under  this  section  as  the  final  decree  which  was  en- 
tered in  the  case  of  the  Bucks  Stove  & Range  Company  against 
Gompers,  et  al. 

Since  the  adoption  of  the  code  there  have  been  three  appeals 
to  this  court  from  such  final  orders.  In  one  case  there  was  an 
appeal  and  a writ  issued  in  addition,  but  in  the  other  two  cases 
there  was  a direct  appeal  to  this  court  and  a review  by  this  court, 
and  in  one  instance  a reversal  by  this  court,  and  in  the  others 
there  was  a confirmation. 

It  may  be  said  that  the  question  was  not  argued  before  this 
court,  that  no  one  raised  the  question  of  jurisdiction.  I do  not 
understand  that  anyone  has  to  raise  the  question  of  jurisdiction. 
A court  never  assumes  jurisdiction  simply  because  some  one  does 
not  raise  the  question.  If  the  court  has  not  jurisdiction,  it  does 
not  take  it,  no  matter  whether  there  is  objection  to  it  on  the  part 
of  counsel  or  not.  So  that  these  three  cases  stand  here  as 
precedents,  which  guided  my  associates  in  determining  whether 
or  not  an  appeal  should  be  taken,  and  which  guided  the  judge 
below  who  undertook  to  allow  an  appeal  to  this  Court.  It  does 
not  occur  to  me  that  the  allowance  of  the  appeal  adds  anything 
to  it,  nor  does  the  fact  that,  as  a part  of  this  decree,  there  was 
an  allowance  of  an  appeal.  There  is  no  protest  against  it  by 
the  learned  attorneys  for  the  petitioner,  and  it  must  have  been 
assumed  by  a common  consent  of  judge  and  lawyers,  no  objection 
being  made,  that  it  was  reviewable  in  this  Court,  and  that  the  al- 
lowance of  the  appeal  was  proper.  This  action  neither  added  to, 


nor  took  away  its  appealability.  While  there  is  a right  to  the 
allowance  of  an  appeal  in  certain  cases,  given  by  this  same  sec- 
tion, this  particular  case  is  not  covered  by  it,  for  appeal  is  a 
matter  of  right  in  case  of  final  action.  There  was  an  appeal 
taken  directly,  so  that  the  allowance  of  it  neither  adds  to  it  nor 
takes  from  it.  That  order  is  appealable,  under  this  section,  be- 
cause it  is  a final  order.  It  seems  to  me  it  must  be  conceded  to  be 
a final  order  in  an  independent  proceeding,  and  that  is  an  end  of 
the  matter. 

I have  now  concluded  a review  of  the  findings  against  these 
defendants,  Gompers,  Mitchell  and  Morrison.  I have  referred  to 
everyone  of  them  except  one,  and  in  that  one  there  is  no  specifica- 
tion of  acts  done  or  omitted.  That  paragraph  brings  up  again 
the  question  which  your  Honor  was  good  enough  to  put  to  me 
in  the  course  of  the  argument. 

No.  26  is  a finding  in  effect,  that  they,  the  said  Samuel  Gompers, 
Frank  Morrison  and  John  Mitchell,  knew  about  this  order. 
Then  follows  the  substance  of  the  order  in  its  entirety,  and 
then  the  paragraph  concludes : 

“Yet,  by  the  acts,  means,  devices  and  subterfuges  aforesaid, 
the  said  Samuel  Gompers,  Frank  Morrison  and  John  Mitchell 
have  designed  and  sought  to  continue  in  force  and  effect,  and 
have  continued  in  force  and  effect,  in  wilful  disregard,  violation, 
disobedience  and  contempt  of  the  aforesaid  order  and  decree 
of  this  Court,  the  boycott  against  petitioner,  and  the  conspiracy 
recited  in  the  bill  to  destroy  its  business,  which  they  and  the 
other  defendants  have  been  and  are  by  said  order  and  decree 
restrained  and  enjoined  from  continuing.” 

Of  course  we  had  no  chance  to  meet,  in  this  case,  anything 
except  that  which  was  specified.  It  was  impossible  for  the 
defendants,  in  the  hearing  before  the  Master,  to  bring  out  any 
evidence  upon  subjects  which  they  did  not  know  anything  about. 
They  have  specified  in  the  petition  the  matters  and  things  of 
which  they  complain,  and  every  single  one  of  them  which  occurred 
after  the  making  of  this  order.  I have  discussed,  in  your 
Honors’  hearing,  every  single  one  of  them,  about  which  evidence 
was  given.  They  were  the  subjects  of  controversy.  If  there 
were  any  other  things  that  were  the  subject  of  controversy  here 
we  do  not  know  of  them  and  did  not  know  of  them. 

If  what  I have  stated  in  your  Honors’  hearing  is  well  taken,  if 
I have  shown  to  your  Honors,  that  no  one  of  these  specifications 
in  the  complaint,  which  I have  treated,  will  support  an  adjudica- 
tion of  contempt  of  court,  then  your  Honors  certainly  cannot  hold 
that  my  clients  can  be  found  guilty  of  contempt  and  be  ruined, 
upon  something  they  have  not  had  a chance  to  meet.  That  cannot 
be  possible,  after  a court  makes  a finding  of  fact  upon  everything 
that  was  tried  in  a case,  in  which  guilt  must  be  proved  beyond  a 
reasonable  doubt,  after  defendants  have  met  every  allegation  of 


38 


fact,  after  they  have  shown  that  not  one  of  those  allegations  would 
support  an  adjudication  of  contempt  and  a conviction  for  it  and 
punishment  under  it;  and  when,  as  we  all  know,  the  law  is  that 
before  any  man,  either  by  trial  before  a jury  for  an  offense  against 
the  criminal  law  or  on  a trial  before  a court  for  violating  its  de- 
cree, can  be  convicted  and  incarcerated  he  must  have 
an  opportunity  to  be  heard  and  an  opportunity  to  present  his 
evidence  in  opposition  to  the  claims  that  are  made  against  him, 
and  have  it  established  beyond  a reasonable  doubt  that  he  was 
guilty  of  some  one  of  the  charges  which  constitute  the  contempt. 

So  I pass  this  final  finding  with  the  assertion  that  if  your 
Honors  shall  reach  the  conclusion  we  have  urged,  that  contempt 
cannot  be  supported  upon  any  specific  allegation  here,  your 
Honors  certainly  never  will  hold  that  Gompers,  Mitchell  and 
Morrison  or  any  one  of  them  can  be  sent  to  prison  on  a general 
allegation,  as  to  which  they  never  had  an  opportunity  to  be  heard. 

The  indisputable  facts  of  this  controversy  settled,  principles 
and  the  authorities  cited,  it  seems  to  me,  conclusively  establish 
that  the  appellants,  each  of  them  acting  separately,  and  all  of 
them  acting  in  combination,  and  the  American  Federation  of 
Labor,  and  every  organization  composing  the  American  Federa- 
tion of  Labor  had  and  have,  subject  only  to  liability  by  civil 
action  or  criminal  procedure  after  the  course  of  the  common 
law  the  fullest  liberty  to  speak,  write  or  print  anything  he,  they, 
or  it  may  see  fit  in  disparagement  of  the  Bucks  Stove  & Range 
Company,  its  products,  its  method  of  business  and  its  treatment 
of  its  employees ; to  refuse  to  patronize  that  Company  themselves, 
and  to  dissuade  others  from  doing  so ; and  that  no  Court  has  the 
power  by  any  sort  of  process  to  abridge  one  jot  or  title  of  this 
liberty  of  speaking  and  freedom  of  printing  or  in  anywise  to 
interfere  with  the  attitude  or  conduct  of  the  appellants,  the 
American  Federation  of  Labor  and  its  constituent  bodies  so 
long  as  none  of  these  things  is,  nor  all  of  them  together  are, 
such  as  to  tend  to  coerce  or  intimidate  and  so  prevent  other 
persons  or  corporations  from  dealing  with  that  Company.  But 
there  is  not  a particle  of  testimony  in  the  entire  record  that 
either  of  these  defendants  spoke,  wrote,  printed  or  circulated 
one  word  or  committed  one  act,  or  advised  others  to  do  so, 
threatening,  intimidating  or  coercing  any  person,  body,  or  firm  in 
respect  of  their  or  its  dealing  with  the  Bucks  Stove  & Range 
Company  subsequent  to  the  injunction. 

I felicitate  myself  on  the  privilege  of  appearing  before  this 
high  tribunal  in  behalf  of  men  who  have  dedicated,  aye  (and  I 
speak  with  knowledge  of  the  subject  and  with  the  calmness  of 
knowledge),  consecrated  their  talents,  faculties  and  powers  to 
what  they  deem  a sacred  cause.  They  are  prepared  and  willing 
if  need  be,  to  suffer  in  that  cause;  yet  they  would  not  mock  the 
martyrdom  which  is  the  seed  of  great  and  successful  establish- 
ments by  courting  it;  nor  would  they  escape  it  by  suing  for 


39 


favor.  They  are  not  before  this  Court  as  supplicants.  They  are 
here  appealing  from  injustice  and  demanding,  with  the  pro- 
foundest  respect,  but  with  equally  profound  conviction,  the 
undoing  of  wrong.  These  are  not  the  vain  words  of  the  advocate 

seeking  to  win  the  case  of  his  client.  They  are  but  the  echo 

a feeble  one — of  the  high  yet  humble  spirit  of  the  unpretending 
men  for  whom  I am  privileged  to  speak.  Above  all,  the  men 
for  whom  I speak  are  law-respecting.  I would  fail  to  represent 
them  if  I were  not  to  speak  as  I do.  When  the  final  word  has  , 
been  spoken,  if  it  shall  condemn  them,  they  will  cease  their 
contest,  with  the  same  calmness  and  dignity  as  that  which  char-  j 
acterized  their  responses  to  the  question,  “What  have  you  to 
say  why  sentence  shall  not  pass  ?”  Again  I am  uttering  no 
empty  words  of  a mere  advocate,  I am  speaking  whereof  I 
know. 

If  then,  these  appellants  shall  be  incarcerated  and  this  great 
organization  of  two  millions  of  men  of  the  bone  and  sinew  of 
our  country,  shall  be  deprived  of  their  leadership  and  counsel 
in  their  efforts  at  moral  and  social  as  well  as  material  uplift,  it 
will  be  simply  and  only  because  they  have  dared  to  use  their  pens 
and  to  lift  up  their  voices  in  protest  against  what  they  and  many  I 
jurists  and  statesmen,  and  civilians  in  other,  the  highest,  walks 
of  life,  deem  an  invasion  of  a right  without  which  there  cannot , 
long  exist  government  by  the  people,  for  the  people. 

It  is  high  time  for  lawyers  in  the  forum  and  on  the  bench 
to  hark  back  from  the  wilderness  of  construction  and  words 
of  art  to  the  plain  road  of  the  Constitution  and  its  simple  signs ; 
and  know  and  advise  and  authoritatively  announce  that  within  j 
every  inch  of  land  and  water  covered  by  the  flag  and  under  the 
government  of  these  United  States  any  and  all  persons,  singly  or . 
in  whatever  combination  or  association  may  freely  speak,  write, : 
print,  publish  and  circulate  whatever  sentiment  he  pleases  about 
any  person  or  body,  or  association;  the  Government  (State  or: 
Federal)  and  any  of  its  departments;  the  character,  conduct  andi 
methods  and  practices  of  any  of  the  officials,  members,  or  in- 
cumbents; that  this  liberty  is  so  absolute  as  to  be  beyond  exec-' 
utive,  legislative,  or  judicial  power  by  any  means,  or  form  of 
process,  to  previously  restrain,  or  limit  the  exercise  of  this  right 
to  so  speak,  write,  etc.,  or  by  any  refined  distinctions  between  the 
exercise  and  the  abuse  of  liberty  of  speech  and  freedom  of  the 
press — distinctions  always  affected  by  the  personal  equation  so 
that  no  definite  rule  of  guidance  in  regard  to  them  can  be  formu- 
lated. No  such  qualification  can  be  found  in  the  organic  law 
nor  can  any  such  be  brought  into  the  Constitution  from  the  tree 
of  construction  and  engrafted  upon  it  by  legal  skill.  The  Con- 
stitution was  framed  by  men  of  sound  learning  and  education, 
and,  so,  especially  in  respect  of  its  great  cardinal  principles  | 
touching  of  personal  rights,  in  plain  language,  intending  to  be: 
understood  and  applied  by  persons  of  fair  intelligence,  according 
to  its  ordinary  acceptation.  Hence  when  the  citizen  of  ordinary. 


40 


intelligence  reads  that  “every  one  may  freely  speak,  write,  and 
print  his  sentiments  on  any  subject;  being  responsible  for  the 
abuse  of  that  right,”  he  rightly  understands  that  he  exercises 
this  privilege  subject  to  liability  for  damages  or  to  penalty,  to 
be  ascertained  and  adjudged  according  to  the  usual  course  of 
action  for  damage  or  prosecution  for  crime.  And  this  organic 
provision  is  an  invincible  protection  against  any  attempt  by  any 
court  or  Judge,  through  any  form  of  procedure  or  process  to 
previously  limit  the  exercise  of  this  right  and  then  fine  or  im- 
prison him  if  in  the  opinion  of  another  citizen  who  happens  to 
wear  the  ermine  he  has  transgressed  that  limit.  Subject  only 
to  this  liability  any  citizen  or  association  of  citizens  may  assail 
or  traduce  any  other  person  or  association  (for  whatever  pur- 
pose associated)  in  the  severest,  and  even  vilest  terms,  and 
without  a shadow  of  excuse,  and  may  warn  the  public  against 
him  or  them  or  it — against  recognizing,  associating,  patronizing, 
or  in  any  wise,  dealing  with  such  person  or  association;  and  he 
may  induce  as  many  as  he  can  to  join  with  him — all  this  he, 
alone  or  in  combination,  may  do  under  the  aegis  of  the  Consti- 
tution— so  long  as  I and  those  who  join  me  go  not  so  beyond 
the  expression  of  sentiment  or  opinion.  No  Court  or  Judge 
can  impose  any  previous  restraint.  No  other  deterrent  is 
available  than  a judgment  for  damages  or  of  penalty  in  a criminal 
proceeding  according  to  the  ordinary  course. 

.If  from  this  free  expression  of  sentiment  there  should  ensue 
injurious  consequences  to  the  defined  rights  of  others,  or  de- 
fined offenses  against  the  person,  or  against  property,  or  justice, 
or  reputation,  still,  the  expression  of  such  sentiments  cannot  be 
suppressed  or  prevented.  To  the  extent  that  they  shall  have 
identified  the  author  with  the  wrong  or  offense,  as  an  ultimate 
factor  he  must  respond  to  a civil  action,  or  a criminal  prosecu- 
tion, according  to  the  usual  course.  In  no  other  way  can  he  be 
reached.  That  is  liberty  and  is  not  a license.  Any  other  view 
involves  inevitably  a censorship. 

The  question  involved  is  of  such  universal  and  paramount 
interest  and  so  affects  every  citizen  and  every  interest  that  I 
feel  compelled  to  go  on.  It  is  of  no  moment  that  the  journal 
in  question  is  the  official  organ  of  the  American  Federation  of 
Labor.  The  soundness  of  the  decision  and  the  opinion  of  the 
presiding  Judge,  comments  upon  which  is  almost  the  entire  basis 
of  the  sentence  appealed  from,  is  a legitimate  subject  of  dis- 
cussion by  any  current  publication  in  the  land,  whether  it  be 
an  organ  of  the  Manufacturers’  Association,  of  the  Meat  Packers, 
the  Grangers,  the  Steel  Trust,  the  Dairy  Farmers,  Live  Stock 
Dealers,  or  of  the  Federation  of  Labor.  The  decision  and  the 
opinion  are  public  property.  It  may  be  said  that  one  of  the 
purposes  of  publishing  them  is  that  they  may  be  the  subject  of 
discussion  for  the  enlightenment  of  the  people. 

Of  course,  scurrilous,  or  scandalous  matter  or  such  matter  as 
attacks  the  Court  personally  or  impugns  its  motives  or  the 


41 


motives  of  its  Judge  or  Judges  is  reprehensible  and  not  intended 
in  any  sense  to  be  urged  as  the  right  of  a public  journalist. 

But  outside  and  beyond  all  this  there  is  a realm  as  expansive 
as  God’s  air,  as  boundless  as  the  sea,  from  which  no  public 
organ  representing  any  sentiment  or  shade  of  sentiment  can 
be  excluded  in  the  discussion  of  questions  in  which  the  public 
or  any  considerable  portion  of  it  is  concerned. 

The  right  of  the  laboring  population  to  organize  for  the  pro- 
tection and  advancement  of  its  interests  is  a public  question 
and  one  which  presents  itself  as  one  of  the  factors  in  labor 
disputes  with  capital,  and  for  that  reason  becomes  a public  and 
political  question  of  the  first  magnitude. 

It  is  freely  admitted  that  the  action  of  the  Court  within  its 
jurisdiction  and  not  in  excess  of  its  power  is  sacred  until 
reversed  or  modified  by  a Court  of  Review. 

But  the  principles  involved  in  the  consideration  of  the  ques- 
tion by  the  Court  is  a matter  of  public  concern  and  public 
interest,  are  still  open  to  fair  and  full  exhaustive  discussion  and 
consideration  by  a public  journal,  and  especially  by  a public 
journal  devoted  to  the  interests  and  representing  the  sentiments 
of  a part  of  the  people  peculiarly  interested  in  that  question. 

The  question  of  the  right  of  members  of  a particular  organ- 
ization or  other  citizens  of  the  United  States  friendly  to  that 
organization  to  buy  or  not  to  buy  the  products  of  the  Bucks 
Stove  Company  for  the  reasons  given  by  the  organ  of  that 
organization  or  for  any  reason  is  not  concluded;  it  is,  it  seems 
to  us,  a question  presenting  itself  exclusively  to  the  consideration 
of  the  individual  himself.  The  organ  which  represents  his 
views,  or  which  even  without  representing  his  views,  is  the 
acknowledged  standard  of  literature  and  sentiment  of  his  organ- 
ization, is  no  more  debarred  from  the  discussion  of  the  reasons 
for  and  against  such  action  or  of  the  power  of  the  Court  in 
that  particular  than  would  be  the  privilege  and  duty  of  any  of 
the  organs  we  have  named,  if  its  constituency  were  affected,  or 
of  any  of  the  great  organs  of  public  sentiment  discussing  the 
feasibility  of  the  United  States  Government  entering  into  the 
project  of  building  the  Panama  Canal  or  constructing  a great 
international  highway  or  subsidizing  a merchant  marine  or  con- 
structing a great  navy. 

It  is  no  answer  to  this  view  to  say  that  the  publication  and 
discussion  of  these  views  injure  the  business  of  the  plaintiff 
and  are  calculated  to  diminish  its  receipts  or  even  ultimately 
to  destroy  it.  Every  man,  every  business,  every  occupation, 
business  and  profession  exists  only  in  the  breath  of  the  good 
will  of  its  constituency.  If  any  business  or  profession  delib- 
erately assumes  a hostile  attitude  toward  any  part  of  the  great 
body  politic  it  must  necessarily  assume  as  part  of  that  hostility 


42 


the  loss  of  the  patronage  and  good  will  of  the  particular  element 
which  it  has  seen  fit  to  antagonize.  That  is  a mere  incident  of 
life  and  business. 

The  guarantee  of  freedom  of  speech  and  the  freedom  of  the 
press  as  contained  in  Article  1 of  the  Federal  Constitution  would 
be  a mere  dead  letter  if  an  injunction  would  control  or  suppress 
the  expression  of  the  opinions  of  a journal  representing  any 
part  of  the  public,  or  a constituency  however  small. 

The  American  Federationist  would  be  untrue  to  itself,  untrue 
to  the  great  profession  of  public  journalism,  untrue  to  consti- 
tutional liberty  and  its  own  convictions  of  freedom  both  of 
conscience  and  of  the  press  and  to  its  own  particular  and  great 
constituency  if  the  spirit  of  servile  fear  and  humiliation  it 
should  refrain  from  a free,  fearless,  honest  and  undaunted  dis- 
cussion of  the  questions  involved. 

This  it  has  done. 

This  it  was  entitled  to  do. 

This  it  ought  to  have  done. 

Your  Honors,  I have  finished.  I thank  you  for  your  courtesy. 
I submit,  with  confidence  in  your  wisdom  and  your  love  of  jus- 
tice, not  only  the  case  of  my  clients  but  the  case  of  the  two 
millions  of  people  who  stand  behind  them. 


ARGUMENT  OF  J.  J.  DARLINGTON,  ESQ., 

On  behalf  of  the  appellee. 

Mr.  Darlington:  May  it  please  the  Court,  the  facts  out  of 
which  this  case  grows,  or  rather  the  facts  of  the  litigation  out 
of  which  this  case  springs  as  a collateral  proceeding,  are  so 
fresh  in  the  minds  of  the  Court  that  I am  sure  I need  not  expend 
very  much  time  in  recapitulating  them. 

There  was  filed  in  the  Court  below  a bill,  in  December  of 
1907,  alleging  that  the  defendants,  including  these  appellants, 
had  entered  into  a conspiracy  to  do  certain  things,  embracing 
all  the  things  that  were  subsequently  included  in  the  injunctions. 

It  is  not  claimed  here,  and  it  cannot  be  claimed,  that  the 
injunctions  embraced  anything  which  was  not  specifically  set 
out  in  the  bill,  or  as  to  which  an  injunction  was  not  specifically 
prayed,  because  you  will  find,  by  comparing  them  that  the  injunc- 
tions are  in  the  very  language  of  the  prayers  of  the  bill  for 
relief. 

We  have,  therefore,  the  case  of  a bill  filed  in  a Court  of 
general  jurisdiction,  against  persons  who  are  served  with  process 
and  who  appear  and  answer,  alleging  that  certain  acts  in  the 


43 


nature  of  a criminal  conspiracy  were  being  prosecuted  by  those 
defendants,  and  that  the  complainant  claims  a writ  of  injunction 
against  those  acts. 

Did  that  bill  present  a case  of  jurisdiction?  Of  jurisdiction 
of  the  person — yes;  because  the  persons  were  personally  served 
with  process,  they  personally  appeared  and  answered,  and  they 
did  not,  at  any  stage  of  the  case,  claim  that  the  Court  was 
without  jurisdiction. 

Of  jurisdiction  over  the  subject  matter — yes,  because  it  was 
simply  an  ordinary  case  of  an  injunction  sought  against  acts 
alleged  to  be  illegal,  to  the  detriment  of  the  plaintiff  and  which 
involved  irreparable  injury. 

Before  I proceed  with  the  case,  in  the  order  in  which  we  have 
decided  to  treat  it,  let  me  reply  to  a few  of  the  observations 
of  the  distinguished  gentleman  who  presented  the  case  for  the 
appellants.  He  states  that  this  is  a case  seeking  the  imprison- 
ment of  three  very  excellent  gentlemen  at  the  request  of  a 
private  suitor,  at  the  request  of  the  appellee  in  this  case. 

Is  that  correct?  Surely  a private  citizen  has  a right  to  the 
benefit  of  a decree  of  a Court  which  he  has  obtained,  and  that 
he  has  assumed  the  position  of  the  complainant  in  this  case 
could  amount  to  nothing  more  than  saying  to  the  Court : “You 
have  granted  me  a decree  for  relief,  and  that  decree  is  being 
disregarded.  I ask  that  a rule  be  issued  against  the  persons  who 
are  disregarding  it,  to  show  cause  why  they  should  not  be 
attached  for  contempt.”  There  is  no  request  for  imprisonment. 
There  is  no  request  for  or  indication  of  any  particular  kind 
of  punishment  which  shall  be  meted  out,  if  the  parties  are 
guilty.  There  is  simply  an  ordinary  application,  and  the  only 
application  which  an  injured  party  can  make,  asking  that  these 
parties  shall  show,  or  have  an  opportunity  of  showing,  whether 
they  are  not  violating  the  decree,  and  if  so,  why  the  Court 
should  not  deal  with  them  as  people  are  dealt  with  who  violate 
decrees  of  the  Court. 

Next — and  I was  very  much  surprised  to  hear  this — the  Court 
is  told  that  this  sentence  of  imprisonment  should  be  set  aside 
because  of  the  character  of  these  appellants.  Far  be  it  from 
me  to  say  anything  whatever  in  derogation  of  the  personal 
character  of  any  one  of  these  defendants,  or  to  detract  anything 
from  the  eulogium  which  my  distinguished  friend  has  passed 
upon  them.  That  is  a matter  which  I conceive  is  not  before  the 
Court,  for  any  purpose. 

I understand  that  all  men  stand  free  and  equal  before  the  bar 
of  any  court,  and  that  the  vice-president  of  the  civic  federation 
has  no  more  immunity,  in  disregarding  the  decree  of  a court 
than  the  humblest  citizen  in  the  land.  I understand  that  a gen- 
tleman who  has  enjoyed  the  distinction  of  being  sent  abroad  to 
study  industrial  conditions  there — assuming  all  of  these  things 


44 


to  be  true,  although  there  is  not  a word  of  evidence  in  the  record 
in  regard  to  them — has  no  greater  immunity  for  deliberately 
and  defiantly  disobeying  an  injunction  of  a court,  saying  at  the 
time  that  he  disobeyed  it,  that  he  did  so  with  the  intention  of 
disobeying  it,  and  that  he  would  rather  go  to  jail  than  obey 
it,  than  is  possessed  by  the  humblest  citizen.  I say  I find  no 
principle  in  the  law,  and  certainly  expected  to  find  no  advocate 
in  the  person  of  my  opponent  in  this  case,  that  such  a man  is 
entitled  to  immunity  to  which  others  are  not  entitled ; that 
justice  in  his  case  should  slip  her  bandage  and  say:  ‘‘True,  ordi- 
narily, an  individual,  any  private  complainant,  has  a right  to 
insist  upon  the  observance  of  a decree  of  the  Court  in  his  favor, 
and  every  man  is  bound  to  yield  it;  but  just  see  who  this  violator 
is.  It  is  Mr.  Gompers;  it  is  the  Vice-President  of  the  Civic 
Federation,  of  which  the  Hon.  Seth  Low  is  President;  it  is  a 
gentleman  who  has  been  sent  to  Europe  to  study  industrial  con- 
ditions there.  It  is  error,  which  an  appellate  court  will  correct, 
to  hold  that  such  a man  as  he  is  should  have  the  same  measure 
of  justice  meted  out  to  him  that  is  administered  to  any  ordinary 
party.” 

The  only  distinction  I know  of  is  that  men  of  superior 
intelligence  and  superior  knowledge  are  held  to  a higher  and 
more  rigid  degree  of  obedience  than  persons  whose  offenses  may 
be  attributed  to  inexperience  or  to  ignorance. 

Next,  my  learned  friend  tells  the  Court  that  there  is  no  in- 
stance which  the  diligence  of  counsel  for  the  appellants  has  been 
able  to  discover  in  which  the  punishment  was  so  great  as  this. 
To  that  there  are  two  answers. 

In  the  first  place,  so  far  as  our  investigation  goes,  and  so  far 
as  any  of  the  cases  in  the  long  list  to  which  he  refers  in  his 
brief  indicates,  this  is  the  first  instance  of  record  in  which  appel- 
lants standing  before  a Court  have  said,  before  a decree  was 
granted,  that  they  would  not  obey  it  if  it  were  granted,  and  in 
which,  after  it  has  been  granted,  they  have  declared,  in  print,  in 
public  speech,  and  in  every  conceivable  way:  “Yes,  we  are 
enjoined,  but  it  does  not  make  any  difference;  we  will  not  obey 
the  injunction.” 

So  that,  if  we  have  here  a really  unprecedented  punishment, 
we  have  here,  also,  an  unprecedented  case  of  wilful,  avowed  and 
defiant  disobedience. 

In  the  second  place,  my  friends  need  not  have  passed  beyond 
the  case  of  In  Re  Savin,  131  U.  S.,  267,  to  find  a case  in  which 
a sentence  of  one  year  was  imposed ; and  this  was  not  a sentence 
imposed  upon  a man  who  was  wilfully  and  deliberately  and 
avowedly  violating  a decree  of  the  Court. 

My  friend  says  that,  when  this  injunction  was  issued,  Mr. 
Gompers  called  together  the  employees  of  the  American  Federa- 
tion of  Labor,  and  said  to  them : “This  decree  must  be  obeyed ; 

45 


there  must  be  no  further  circulation  of  this  list.”  I am  sure  my 
friend  so  understood  the  matter;  but,  if  he  will  look  at  the 
record,  he  will  find  that  what  Mr.  Gompers  said  was:  “I  did 
not  wish  my  employees  to  get  into  trouble.  I would  take  the 
responsibility,  or  trouble.  What  I said  to  them  was,  ‘Don’t  you 
do  these  things.’  ” So  far  from  Mr.  Gompers  saying  that  there 
should  be  no  further  distribution  of  this  publication,  the 
undisputed  evidence  in  the  record  shows  that,  within  thirty  days 
after  the  bond  was  given  and  the  appeal  became  operative,  100 
copies  of  this  publication  were  circulated  through  the  Post  Office 
Department,  and  that  the  defendant  Morrison,  during  that  month, 
put  up,  from  time  to  time,  the  money  necessary  to  be  deposited 
for  the  payment  of  postage  on  these  100  copies  as  second-class 
mail  matter.  That  was  done  on  three  different  occasions  during 
those  thirty  days,  and  at  each  of  those  times  Mr.  Morrison  made 
an  additional  deposit  to  cover  the  additional  cost  of  sending  these 
copies  out,  after  this  order  had  concededly  become  effective. 

The  witness  Benedict  testified  that,  on  the  31st  day  of  Decem- 
ber, 1907,  he  went  to  the  office  of  the  American  Federation  of 
Labor  and,  over  the  counter,  bought  one  of  these  publications, 
without  the  slightest  trouble  in  the  world.  The  undisputed  evi- 
dence shows  that,  after  the  bond  had  become  operative,  four 
thousand  copies  of  the  proceedings  of  the  Norfolk  Convention 
were  circulated  by  the  appellants,  classifying  the  Bucks  Stove 
& Range  Company  as  unfair,  and  as  in  the  “We  Don’t  Patronize” 
list,  in  violation  of  the  terms  of  the  order,  and  instructing  organ- 
ized labor,  with  its  entire  force  of  two  million  men,  to  canvass 
every  section  of  the  country,  urging  its  members,  the  tradesmen 
and  others,  against  handling  the  products  of  the  Bucks  Stove 
& Range  Company. 

Over  four  thousand  copies  were  circulated.  The  testimony 
of  Mr.  Gompers  shows  that  these  proceedings  did  not  come  to 
his  hands  until  the  31st  day  of  December,  and  that  over  four 
thousand  copies  had  been  circulated. 

Now,  let  us  see  what  was  the  character  of  the  violations  of 
that  decree  set  up  in  the  petition,  and  what  was  the  extent  of  the 
denial  of  them,  or  rather  whether  there  was  any  denial  of  them. 

We  will  begin  with  paragraph  16  of  the  petition,  which  is  the 
first  paragraph  alleging  a violation  of  the  injunctions  after  the 
decree  had  been  announced.  The  order  for  an  injunction  pen- 
dente lite  had  been  passed  on  the  18th  day  of  December,  1907. 
The  injunction  had  taken  effect  and  become  operative  on  the  23d 
of  December,  1907,  five  days  later.  The  record  shows  that,  after 
the  Court  had  passed  the  order,  it  became  necessary  to  send 
the  injunction  bond  to  St.  Louis,  the  complainant  being  a non- 
resident, so  that  it  might  be  executed,  returned,  and  filed  here. 
That  occupied  five  days.  During  those  five  days,  Samuel  Gom- 
pers hastened,  or  “rushed,  the  publication  of  the  January  issue 


46 


of  the  American  Federationist,  expressly  with  a view  to  circu- 
lating it  during  the  time  which  would  elapse  between  the  passage 
of  the  order  of  injunction  and  its  becoming  effective  by  the  filing 
of  the  bond.  This  January,  1908,  number,  at  page  51,  includes 
and  publishes  in  full  the  “We  Don’t  Patronize”  or  “Unfair”  list 
of  the  American  Federation  of  Labor,  including  in  it  the  name 
of  petitioner;  and,  at  page  38  of  that  issue,  the  appellant,  Samuel 
Gompers,  published  an  advertisement  for  sale  of  a number  of 
copies  of  the  American  Federationist  for  the  year  1907,  and  of 
the  official  printed  proceedings  of  the  Norfolk  Convention  to 
which  I have  referred,  of  which  a number  of  thousands  of  copies 
were  issued  and  circulated.  “Notwithstanding  the  fact  that  the 
injunction  pendente  lite  had  taken  effect  on  the  23d  day  of  De- 
cember, 1907,  the  said  Samuel  Gompers  and  the  said  Frank 
Morrison  thereafter  continued  to  circulate  and  distribute  the  said 
issue,  containing  the  name  of  petitioner  as  aforesaid,  and  not- 
withstanding the  fact  that  the  permanent  injunction  has  since 
been  entered  in  this  cause,  they  have  from  the  said  23d  day  of 
December,  1907,  to  the  present  time,  continued  uninterruptedly 
to  circulate  and  distribute  to  the  public  generally  copies  of  the 
said  January,  1908,  number  of  the  American  Federationist,  of 
the  proceedings  of  the  Norfolk  Convention  above  mentioned,  and 
bound  copies  of  the  American  Federationist  for  the  year  1907, 
the  latter  containing  in  each  of  the  May,  June,  July,  August, 
September,  October,  November  and  December  numbers  thereof 
the  name  of  petitioner  on  the  ‘We  Don’t  Patronize’  ,or  ‘Unfair’ 
list  of  the  American  Federation  of  Labor.” 

The  answer  to  this  allegation  of  the  petition  will  be  found 
on  page  25  of  the  record : 

“Answering  the  sixteenth  paragraph  of  the  petition,  this  re- 
spondent says  that  even  if,  as  stated,  he  ‘rushed’  the  publication 
of  the  January,  1908,  issue  of  the  American  Federationist,  he  is 
not  aware  that  in  so  doing  he  violated  any  injunction  order  of 
this  Court,  or  that  he  could  have  violated  such  order  by  any 
action  had,  prior  to  its  becoming  effective” — not  that  he  did 
not  do  it;  but  that,  even  if  he  did  it,  he  has  not  violated  any 
injunction  or  order  of  this  Court. 

Mr.  Justice  Van  Orsdel : I understand  it  is  conceded  by 
counsel  on  the  other  side  that  he  did  rush  it. 

Mr.  Darlington:  Yes,  sir;  and  it  is  contended  that  such  an 
act  was  analogous  to  a tariff  act,  under  which  a higher  duty  is 
imposed  upon  importers  after  a certain  date,  and,  that  until 
that  dates  arrives,  persons  are  not  criminals  because  they  import 
goods  under  the  lower  tariff.  Is  there  the  slightest  analogy? 

The  Chief  Justice:  Suppose  this  bond  had  never  been  filed? 

Mr.  Darlington : Then  why  rush  it  ? Is  it  not  beyond  dispute 
that  the  only  motive  in  rushing  was  the  anticipation  that  the 
bond  would  be  filed? 


47 


The  Chief  Justice:  But  suppose  it  had  never  been  filed? 

Mr.  Darlington : Then  the  order  never  would  have  become 
operative,  and  this  question  could  not  have  arisen.  But  the 
evident  intent,  in  rushing  it,  was  the  expectation  and  anticipa- 
tion that  a bond  would  be  filed.  The  suggestion  that  the  act 
may  have  been  done  in  anticipation  or  expectation  that  a bond 
might  never  be  filed  answers  itself ; because  in  that  case  there 
would  be  no  cause  to  rush. 

But  we  are  relieved  from  the  necessity  of  speculation  upon 
the  point,  if  susceptible  of  it,  by  the  testimony  of  Mr.  Gompers 
himself  as  to  why  he  did  it  and  what  his  purpose  was.  In  the 
economy  of  time  I will  read  from  my  brief. 

Mr.  Justice  Van  Orsdel:  At  what  page  of  the  record? 

Mr.  Darlington : I will  read  from  page  10  of  my  brief,  which 
gives  the  page  of  the  record: 

“This  issue,  in  due  course,  would  have  come  out  on  the  25th 
of  January.  It  was  gotten  out  on  the  22d  of  January,  which 
was  Sunday,  and  on  that  day,  Sunday,  some  thousands  were 
mailed  to  distant  points,  some  being  mailed  as  far  as  California, 
where  the  parties  knew  they  could  not  be  received  before  the 
bond  was  given,  if  it  was  given  at  all.  Not  only  that,  but 
several  thousand  copies  were  given  to  a distributing  agency,  the 
Washington  News  Company,  on  Sunday,  the  22d,  for  the  pur- 
pose of  being  distributed.” 

Now,  why  was  that  done?  Mr.  Gompers  testifies  that  he 
“hurried”  the  issue  by  a personal  superintendence  of  the  mailing, 
for  the  express  purpose  of  getting  it  out  before  the  undertaking 
was  filed — not  anticipating  that  it  might  not  be  filed,  but  for 
the  express  purpose  of  getting  it  out  before  it  was  filed.  As  I 
say,  there  could  be  no  occasion  for  rushing  it  in  the  expectation 
that  it  was  not  going  to  be  filed.  Although  he  knew  that  the 
order  had  been  passed,  and  would  be  operative  as  soon  as  the 
undertaking  was  filed,  he  testified  that  he  thought  the  under- 
taking might  be  given,  and  distributed  the  copies  before  it  was 
done;  that  he  hurried  up  the  issue  because  of  the  possibility  that 
the  complainant  would  give  the  undertaking  and  thereby  give 
force  and  operation  to  the  injunction  issued  by  Justice  Gould. 
Why  did  he  wish  to  issue  them?  What  was  the  object  of  it? 
His  purpose,  he  testifies,  was  to  affect  complainant’s  business 
by  influencing  respondent’s  fellow  workmen  and  unions  to  prevail 
upon  it  to  come  to  an  agreement.  He  “hoped  to  lessen  its  business 
until  it  came  to  such  an  agreement,”  which  was  the  purpose  of 
the  boycott.  He  “did  not  care  to  yield  the  appearance  of  com- 
plainant’s name  in  the  ‘We  Don’t  Patronize’  list  of  the  January 
issue.”  The  decree  forbade  it,  but  he  did  not  care  to  yield  that. 
He  “anticipated  the  injunction  would  soon  become  operative, 
and  was  diligent  to  see  that  the  issue  was  distributed  before  it 
was  done,  having  for  this  purpose  placed  a large  number  of 

48 


these  copies  in  the  hands  of  the  Washington  News  Company  for 
distribution,  neither  informing  the  News  Company  that  the  in- 
junction order  had  been  signed  and  might  become  operative,  or 
taking  any  steps  to  prevent  it  from  circulating  the  numbers  after 
he  had  learned  that  the  injunction  undertaking  was  given — he  left 
them  to  take  the  usual  course.”  He  “hurried  because  he  wished 
to  get  the  injunction  out  before  it  became  operative,  that  com- 
plainant’s name  might  continue  to  be  published  connected  with 
the  ‘We  Don’t  Patronize’  caption,  without  the  interference  of 
anyone,  including  the  Court.”  He  did  not  then  intend  that  the 
Court  should  interfere  with  the  appearance  of  that  name  on  that 
list  in  the  January  issue. 

As  I say,  the  only  answer  to  this,  in  the  pleadings,  is  that,  even 
if  he  did  rush  it,  he  was  not  aware  that  he  violated  the  injunction. 

In  the  economy  of  time,  I propose  to  discuss  the  legal  phases 
of  this  case  a little  later.  I am  now  stating  the  facts. 

The  petition  further  charges,  in  the  seventeenth  paragraph — 
and  I will  read  as  little  as  I can — just  enough  to  give  the  Court 
a fair  conception  of  what  these  charges  were — that  in  the  Feb- 
ruary, 1908,  number  of  the  American  Federationist,  which  came 
out  something  more  than  a month  after  the  bond  had  been  given, 
Mr.  Gompers  published,  and  Mr.  Mitchell  helped  to  circulate — 
because  he  was  the  man  who  put  up  the  money  in  the  Post  Office 
Department  for  postage  to  pay  for  the  circulation  of  these 
papers — an  editorial  and  an  “Urgent  Appeal”  in  which  it  was 
stated : 

“The  order  is  an  invasion  of  the  liberty  of  the  press  and  the 
right  of  free  speech.  With  all  due  respect  to  the  Court,  it  is 
impossible  for  us  to  see  how  we  can  comply  with  all  the  terms 
of  the  injunction.  This  injunction  cannot  compel  union  men 
or  their  friends  to  buy  the  Bucks  stoves  and  ranges.  For  this 
reason  the  injunction  will  fail  to  bolster  up  the  business  of  this 
firm,  which  it  claims  is  so  swiftly  declining.” 

In  other  words,  the  injunction  had  forbidden  the  further  pub- 
lication of  this  name  in  the  “We  Don’t  Patronize”  or  “Unfair” 
list.  It  had  forbidden  reference  to  it  in  connection  with  the  word 
“unfair,”  or  in  connection  with  the  term  “boycott,”  and  had  for- 
bidden any  statement  in  writing  or  otherwise  or  any  reference 
to  the  fact  that  there  had  been  a boycott  made,  or  that  com- 
plainant’s name  had  been  put  upon  the  unfair  list  or  the  “We 
Don’t  Patronize”  list,  and  yet  he  announces  in  the  February 
Federationist  that  an  injunction  had  been  granted,  but  he  does 
not  see  how  they  can  obey  it  in  all  its  terms,  and  he  tells  these 
two  million  men,  of  whom  my  friends  tell  us  he  is  the  leader,  that 
they  need  not  pay  any  attention  to  it ; that  they  can  still  continue 
to  boycott  just  as  they  had  done  before,  and  that  the  relief 
which  the  Court  had  given  would  not  bolster  up  the  business 
of  the  firm. 


49 


“Individuals,  as  members  of  organized  labor,  will  still  exercise 
the  right  to  buy  or  not  to  buy  the  Bucks  stoves  and  ranges.  It 
is  an  exemplification  of  the  saying,  that  ‘you  can  lead  a horse  to 
water,  but  you  can’t  make  him  drink,’  and  more  than  likely  these 
men  of  organized  labor  and  their  friends  will  continue  to  exercise 
their  right  to  purchase  or  not  to  purchase  the  Bucks  stoves  and 
ranges.” 

I am  reading  only  extracts.  He  continues: 

“So  long,  however,  as  that  company  continues  in  its  hostile 
attitude  to  labor,  denying  it  the  right  to  organize,  discriminates 
against  union  members,  and  refuses  to  accord  conditions  of 
employment  generally  regarded  as  fair  in  the  trades,  it  must 
expect  retaliatory  measures.” 

What  were  those  retaliatory  measures,  except  the  very  thing 
which  they  had  done,  and  which  they  were  now  told  they  must 
not  do,  pending  the  further  action  of  the  Court? 

Again : 

“The  publication  of  the  Bucks  Stove  & Range  Company  on  the 
‘We  Don’t  Patronize’  list  of  the  American  Federation  of  Labor 
is  only  an  incident  in  the  history  of  the  case.  These  stoves  might 
have  been  left  as  severely  alone  by  purchasers  if  they  had  never 
been  mentioned  on  that  list.  It  is  not  the  matter  of  removing 
that  firm  from  the  list  against  which  we  primarily  protest,  it  is 
this  injunction  invading  the  freedom  of  the  press.” 

In  other  words,  in  three  sentences,  there  are  three  references 
to  the  fact,  forbidden  by  the  injunction,  that  this  company  had 
been  on  the  unfair  list,  and  that  it  was  not  there  now  simply 
because  that  action  had  been  enjoined  by  the  Court. 

There  is  another  feature  of  this  case  which  I think  is  very 
striking.  One  of  the  assignments  of  error  in  this  case  is  that 
there  is  no  evidence  in  the  case  that  these  alleged  violations  of 
the  injunction  led  to  any  continuance  of  the  boycott. 

Let  me  call  the  attention  of  the  Court  to  the  facsimile  printed 
in  the  record  opposite  to  page  616;  but  before  doing  that  I will 
refer  to  another  matter  which  will  make  the  meaning  of  what 
I am  about  to  direct  attention  to  appear  more  clearly. 

On  page  386  of  the  record  the  court  will  find  an  opinion  given 
by  one  of  the  counsel  for  the  complainant  upon  the  efifect  of 
this  injunction.  It  reads : 

“It  is  important  to  everyone  interested  to  understand  that, 
though  this  decree  was  made  by  the  Supreme  Court  of  the 
District  of  Columbia,  and  though  its  power  to  punish  for  con- 
tempt is  limited  to  such  persons  as  it  may  at  any  time  find 
within  the  territorial  limits  of  the  District  of  Columbia,  whether 
they  reside  within  or  without  the  District  of  Columbia,  the 


50 


decree  is  binding  upon  all  persons  comprised  within  its  terms, 
including  all  the  members  of  the  American  Federation  of  Labor, 
wherever  they  reside,  and  all  other  persons  who  have  heretofore 
acted,  or  may  hereafter  act,  in  concert  with  the  defendants 
named  in  the  decree  in  carrying  out  the  boycott  therein  enjoined. 

“It  is  important  also  for  every  person  interested  to  know  that 
it  is  a criminal  offense  under  the  statutes  of  the  United  States, 
punishable  by  imprisonment  in  the  penitentiary  for  not  more 
than  three  years,  for  any  two  or  more  persons  anywhere  in 
the  United  States  to  conspire  together  to  evade  or  defeat  this 
decree  by  doing  any  of  the  acts  prohibited  by  it,  and  they  are 
liable,  for  prosecution  for  it  by  the  Federal  authorities.  It  is 
within  the  power,  and  it  will  be  the  duty  of  the  Federal  author- 
ities to  protect  the  dignity  of  the  Supreme  Court  of  the  District 
of  Columbia  against  all  attempts  to  defeat  the  course  of  justice 
in  that  court  by  the  doing  by  anybody,  in  any  place,  of  the  acts 
enjoined  in  that  decree.” 

In  other  words,  that,  although  the  Court  could  not  punish 
any  persons  except  those  found  within  its  jurisdiction,  yet  the 
decree  is  binding  upon  the  American  Federation  of  Labor  and 
the  persons  associated  with  it,  and  that,  under  the  Federal  Stat- 
utes, if  any  two  or  more  should  combine  to  defeat  it,  they  would 
be  punishable. 

Now,  let  us  see  how  that  was  heralded  to  these  two  millions 
of  men,  in  the  American  Federationist : 

“Order  granting  injunction — ” 

The  Court  will  notice  the  relative  size  of  the  type. 

“IN  THE  OFFICIAL  ORGAN  OF  THE  NATIONAL  AS- 
SOCIATION OF  MANUFACTURERS,  ONE  OF  THE 
COUNSEL  FOR  THE  BUCKS  STOVE  & RANGE  COM- 
PANY DECLARES  THAT  PUNISHMENT  FOR  VIOLA- 
TION OF  THE  INJUNCTION  ISSUED  BY  JUSTICE 
GOULD  AGAINST  THE  AMERICAN  FEDERATION  OF 
LABOR,  APPLIES  PARTICULARLY  TO  THOSE  WITHIN 
THE  TERRITORIAL  LIMITS  OF  THE  DISTRICT  OF 
COLUMBIA  WHO  VIOLATE  THE  TERMS  OF  THE  IN- 
JUNCTION. THAT  THOSE  WHO  VIOLATE  THE  TERMS 
OF  THE  INJUNCTION  IN  ANY  OTHER  PART  OF  THE 
COUNTRY  OUTSIDE  OF  THE  DISTRICT  OF  COLUM- 
BIA CAN  BE  PUNISHED  ONLY  WHEN  THEY  THERE- 
AFTER COME  WITHIN  THE  TERRITORIAL  LIMITS 
OF  THE  DISTRICT  OF  COLUMBIA.  COUNSEL  FOR 
THE  AMERICAN  FEDERATION  OF  LABOR  ASSURE 
US  THAT  THIS  CONSTRUCTION  OF  THE  COURT’S 
ORDER  IS  ACCURATE.” 

In  other  words,  the  opinion  to  the  effect  that,  although  the 
local  court  itself  could  only  punish  those  violators  of  it  who 


51 


were  found  in  this  jurisdiction,  yet  its  decree  was  binding  on 
everyone,  and  that,  if  any  two  persons  united  to  violate  it,  they 
would  be  punished  by  the  Federal  authorities,  is  ignored,  and,  in 
this  prominent  way,  they  published  just  so  much  of  the  opinion 
as  would  make  it  seem  to  say,  “If  you  do  not  come  here,  you 
are  perfectly  safe  in  violating  the  decree,  and  counsel  on  both 
sides  agree  that  there  can  be  no  punishment  for  your  violating 
of  it  unless  you  come  into  the  District  of  Columbia  thereafter.” 

Why  was  that  done?  I read,  for  convenience,  from  pages 
seventeen  and  eighteen  of  my  brief : 

“The  object  of  this  publication,  Mr.  Gompers  himself  states, 
was  to  inform  the  local  unions  so  that  they  might  know  "what 
they  might  do  and  what  they  might  not  do.’  He  tells  them, 
‘Counsel  agree  that  you  can  violate  it  as  much  as  you  please, 
provided  you  keep  out  of  the  District  of  Columbia.’  And  this 
was  told  them  so  they  might  know  what  they  might  do  and 
what  they  might  not  do.  He  states  that  the  information  he 
wished  to  convey  was  that  those  who  violated  the  injunction 
could  be  punished  only  when  they  thereafter  came  within  the 
District — that  he  “thought  the  opinion  of  complainant’s  counsel 
would  be  valuable  to  working  people,  so  that  they  would  be 
guided  by  it.” 

\ 

Guided  in  what?  This  was  issued  on  the  25th  of  January. 

The  relation  of  the  trade  journals  to  the  various  affiliated 
bodies  of  the  American  Federation  of  Labor  was  fully  discussed 
in  the  principal  case,  and  I need  not  refer  to  it  now,  except  as 
my  brief  points  it  out.  At  pages  545-569  of  the  earlier  record 
it  will  be  found  that  every  declaration  of  boycott  declared  by 
the  American  Federation  of  Labor  was  accompanied  with  the 
request,  “Labor  and  Reform  Press  please  copy”;  those  journals 
were  the  agencies  of  the  American  Federation  of  Labor,  which 
“have  proved  effective  weapons  in  the  settlement  of  disagree- 
ments with  labor  in  the  past,”  and  they  were  circularized  by  the 
Federation  for  the  purpose  of  obtaining  their  aid  in  support  of 
the  boycott. 

The  record  further  shows  that  at  the  annual  meetings  of  the 
American  Federation  of  Labor,  the  Convention  gave  recognition 
of  the  “immeasurable  value  to  labor  of  these  labor  and  reform 
journals,”  and  their  “title  to  the  most  friendly  and  generous 
consideration  in  every  way,  from  the  officers  and  members  of 
every  single  union  under  the  jurisdiction  of  the  American  Fed- 
eration of  Labor,”  formed  a feature  of  the  annual  conventions 
of  the  Supreme  body  of  the  Federation. 

In  the  original  record  the  Court  will  further  find  a circular 
issued  by  the  Executive  Council  of  the  American  Federation  of 
Labor  to  these  various  labor  and  reform  journals,  asking  that 
they  diligently  consult  the  “We  Don’t  Patronize”  or  “Unfair” 
list  of  the  Federationist,  so  that  they  would  not  fail  to  get 

52 


promptly  for  publication  any  new  ones  who  are  added,  and  would 
not  fail  to  take  promptly  off  their  list  those  who  had  made  terms 
and  gotten  off  the  American  Federation  list. 

These  notices  by  Mr,  Gompers  thus,  in  effect,  said  and  were 
intended  to  say  to  the  members  of  the  organization,  including 
the  reform  press  and  the  labor  press,  and  their  editors,  that 
those  who  did  not  come  into  the  District  could  not  be  punished. 
“You  can  violate  this  injunction  without  liability  to  punishment, 
provided  you  keep  out  of  the  District.” 

That  was  on  the  25th  of  January.  One  week  later,  on  Jan- 
uary 31st,  the  Journal  of  the  United  Garment  Workers,  the  organ 
of  one  of  the  affiliated  bodies  composing  the  American  Federa- 
tion of  Labor,  published  the  following: 

“All  the  Justice  Goulds,  Bucks  Stoves  & Range  Company  in- 
junctions, and  United  States  Supreme  Court  Judges,  with  their 
declarations  of  the  Erdman  Law  as  unconstitutional,  will  some 
day  be  in  heaven  or  h — , and  trade  unionism  will  still  flourish,  so 
don't  worry.” 

Two  weeks  later,  on  February  14th,  they  drop  into  poetry, 
and  the  following  appears : 

“Neither  Van  nor  his  ally  Judge  Gould 
And  the  combined  forces  of  hell 
Can  bridle  free  speech  in  this  country 
And  the  same  old  story  will  tell.” 

These  are  only  specimens  of  similar  publications  contempo- 
raneously appearing  in  a number  of  the  so-called  labor  reform 
press. 

As  to  that  article  in  the  Federationist,  which  we  claim  was  the 
inducement  and  provocation  for  these  articles  in  the  labor  jour- 
nals, the  lower  Court,  on  page  617  of  the  record,  says: 

“The  evidence  is  so  suggestful  of  a finding  by  the  Court  that 
this  was  for  the  purpose  of  inducing  persons  beyond  the  District 
of  Columbia  to  violate  the  injunction  and  for  the  purpose  of 
defeating  it,  that  that  finding  is  now  made.” 

Here  is  a finding  of  fact  by  the  Court  below,  and  when  we 
come  to  the  law  of  the  case  we  will  find  that  all  the  authorities, 
the  Supreme  Court  of  the  United  States  included,  agree  that, 
whether  a contempt  arises  in  an  equity  suit  or  in  a suit  at  law, 
it  is  a proceeding  at  law,  that  the  appellate  courts  can  consider 
only  the  questions  of  law  arising  in  it,  and  that  they  cannot  review 
the  findings  of  fact. 

We  will  further  find,  when  we  come- to  the  law  of  this  case, 
that,  even  if  this  Court  could  review  the  facts,  the  record  pre- 
sents no  evidence  which  the  Court  can  consider. 

The  Chief  Justice : Have  you  any  authority  to  the  effect  that, 
in  a proceeding  of  this  kind,  the  appellate  court  cannot  review 
the  evidence  ? 


53 


Mr.  Darlington:  Yes;  unless  it  is  made  a part  of  the  record 
by  bill  of  exceptions. 

The  Chief  Justice:  That  may  be  a different  proposition. 

Mr.  Darlington:  That  you  cannot  dump  into  the  record  the 
depositions  as  is  done  here,  and,  that,  even  if  you  could  do  this, 
questions  of  fact  are  not  reviewable,  but  only  questions  of  law, 
and  that  contempt  proceedings,  whether  they  arise  in  an  equity 
suit  or  in  a common  law  suit,  are  a common  law  proceeding. 

The  Chief  Justice:  If  it  had  been  a common  law  proceeding 
then  the  party  would  have  been  entitled  to  a trial  by  jury. 

Mr.  Darlington:  No,  sir;  the  Supreme  Court  of  the  United 
States  says  not. 

The  Chief  Justice:  Do  they  say  that  if  this  proceeding  were 
a common  law  proceeding  a jury  trial  could  not  be  had? 

Mr.  Darlington:  Yes,  sir;  they  say  just  that;  that  this  is  a 
common  law  proceeding,  and  that  it  deals  with  a class  of  facts 
of  which  the  trial  judge  is  the  sole  judge. 

Mr.  Justice  Van  Orsdel:  Was  that  held  in  a case  where  the 
contempt  was  without  the  presence  of  the  Court? 

Mr.  Darlington:  Yes,  sir.  The  Debs  case  is  an  illustration 
of  that,  and  there  are  a number  of  cases  that  will  be  called  to 
the  attention  of  the  Court  when  we  take  up  the  law. 

The  Chief  Justice:  The  Debs  case  did  not  hold  any  such 
proposition  as  that  the  appellate  court  could  not  inquire  into  the 
facts  on  the  trial.  It  seems  to  me  the  Court  there  did  review 
the  facts. 

Mr.  Darlington : When  we  come  to  that  question,  I shall  show 
the  Court,  by  the  authority  of  the  Supreme  Court  of  the  United 
States,  that  the  Court  is  the  sole  judge  of  the  fact  whether  or 
not  its  dignity  has  been  attacked  and  its  authority  defied,  that 
it,  alone,  finds  that  from  the  evidence,  and  that  no  appellate  court 
can  review  those  findings.  It  is  by  no  means  unusual,  as  I am  sure 
your  Honors  will  recall,  to  find  questions  of  fact  of  which  the 
court  is  the  sole  judge.  Take  the  fact  of  whether  or  not  a wit- 
ness is  qualified  to  testify  as  an  expert.  There  the  court  alone 
hears  the  evidence  and  passes  on  that  question,  and  not  the  jury. 

The  Chief  Justice:  The  appellate  court  will  review  the  court’s 
finding  upon  that  question,  as  to  whether  or  not  he  was  in  error 
about  it,  in  admitting  the  testimony.  It  is  a matter  within  the 
Court’s  discretion,  but  certainly  an  appellate  court  would  not 
refuse  to  review  the  action  of  the  trial  judge  in  such  a case  as 
that.  It  is  a question  of  law  and  not  a question  of  fact  as  to 
whether  or  not  the  testimony  is  sufficient  to  show  that  the  party 
is  qualified  to  speak  as  an  expert.  t 


54 


Mr.  Darlington:  So  far  as  my  examination  goes,  no  case 
exists  in  which  the  ruling  of  the  trial  judge  as  to  the  qualifica- 
tions of  an  expert  or  non-expert  witness  has  been  reversed.  It 
is  treated  always  as  a question  of  fact  to  be  determined  by  the 
lower  court. 

Mr.  Justice  Robb:  I suppose  you  could  conceive  of  a case 
where  it  could  be  reviewed? 

Mr.  Darlington : I suppose  we  could  conceive  of  a case  where 
there  would  be  jurisdiction  to  review,  as,  for  example,  if  it  were 
shown  that  a man  never  had  any  experience  in  the  line  of 
expert  knowledge.  For  example,  take  the  case  of  a blacksmith 
who  had  only  shod  horses  and  yet  who  was  allowed  to  express 
his  opinion  as  an  expert  on  abstruse  questions  in  electricity.  I 
can  conceive  of  such  a case,  but  no  such  case  is  to  be  found. 
I think  I am  within  bounds  in  saying  that. 

But  be  that  as  it  may.  The  decision  of  the  Supreme  Court  of 
the  United  States  is  to  the  effect  that  a proceeding  in  contempt 
is  a common  law  proceeding,  and  that  the  trial  court,  the  court 
of  first  instance,  is  the  sole  judge  of  the  facts;  and,  that  if 
the  appellate  court  has  jurisdiction  at  all,  it  can  have  jurisdic- 
tion only  upon  questions  of  law. 

The  eighteenth  paragraph  of  the  petition  sets  up  the  mat- 
ter of  the  Urgent  Appeal  and  the  accompanying  editorial.  This 
is  one  of  the  things  which  concern  all  the  appellants,  be- 
cause all  of  them  sign  the  Urgent  Appeal  which,  in  terms, 
embodied  the  editorial  in  the  Federationist,  printed  at  page  464 
of  the  original  record. 

Our  learned  friends,  both  in  their  brief  and  in  the  presen- 
tation made  this  morning,  argue  that  it  was  essential  to  the 
appellants  to  have  money  to  prosecute  their  appeal,  and  that 
in  order  to  get  that  money  it  was  essential  for  them  to  com- 
municate with  the  various  members  of  their  order;  that  they 
did  not  like  to  make  assessments,  but  preferred  appeals,  and, 
therefore,  that  they  were  at  liberty  to  violate  the  express  pro- 
visions of  this  injunction;  or,  else,  that  the  Urgent  Appeal  and 
the  editorial  accompanying  it  were  not  a violation,  but  were 
merely  a presentation  of  their  need  for  money  for  their  de- 
fense. 

I do  not  think  I need  to  argue  that,  where  a decree  or  order 
of  a court  specifically  prohibits  a specific  thing,  the  fact  that 
persons  who  labor  under  that  prohibition,  but  desire  to  ac- 
complish some  laudable  object,  and  can  accomplish  that  ob- 
ject more  satisfactorily  to  themselves  by  violating  the  injunction 
than  by  not  violating  it,  gives  them  liberty  to  do  so;  and  that 
is  the  proposition  now  presented  here. 

Mr.  Justice  Van  Orsdel : Is  it  your  proposition  here  that, 
assuming  that  the  decree  of  the  court  below  is  the  decree 


55 


of  a court  of  competent  jurisdiction,  it  would  be  a contempt 
to  violate  any  of  the  terms  of  that  decree,  irrespective  of  any 
modification  which  we  have  made  of  the  decree  since  then, 
and  that  it  would  constitute  a contempt,  if  they  merely  pub- 
lished the  name  of  the  Bucks  Stove  & Range  Company  in  the 
American  Federationist? 

Mr.  Darlington:  No,  sir. 

Mr.  Justice  Van  Orsdel:  And  merely  commented  upon  the 
action  of  the  court? 

Mr.  Darlington:  No;  we  should  not  claim  that,  if  any  such 
thing  had  occurred. 

Mr.  Justice  Van  Orsdel ! Or  that  in  commenting  upon  the 
decision  of  the  court  to  the  extent  of  even  publishing  a part 
of  the  decree,  although  the  name  of  the  Bucks  Stove  & Range 
Company  appears  among  the  items  in  that  article — would  you 
contend  that  constituted  a contempt  of  court,  under  that  par- 
ticular decree? 

Mr.  Darlington:  Applying  your  Honor’s  question  to  the 
concrete  case  before  us  there  is,  in  the  first  pla£e,  no  prohibi- 
tion against  their  publishing  the  name  of  the  Bucks  Stove  & 
Range  Company.  There  is  a prohibition  against  publishing  it 
in  connection  with  the  words,  “We  Don’t  Patronize”  or  the 
“Unfair”  list.  There  is  no  claim  in  this  record  that  they 
have  violated  the  decree  by  publishing  simply  the  name  of 
the  Bucks  Stove  & Range  Company. 

Answering  your  question  further,  I would  say  that  I never 
for  a moment  would  contend  that  the  publishing  of  the  name 
of  the  Bucks  Stove  & Range  Company  in  a manner  that  was 
not  prohibited  was  contempt  of  court. 

Now  let  us  see  if  our  friends  are  right  in  their  proposition 
that,  because  the  American  Federationist  needed  funds  to  pros- 
ecute its  appeal,  and  because  it  did  not  like  to  assess  its  mem- 
bers, as  it  had  the  power  to  do  under  the  Constitution,  they 
were  therefore  relieved  from  the  effect  of  the  decree,  in  so 
far  as  that  purpose  called  upon  them  to  violate  it  as  a means 
of  getting  money  to  prosecute  their  appeal. 

Let  me  state,  in  the  first  place,  what  this  court  found  on 
the  former  hearing:  We  have  here  a compact  organization  of 
two  million  men,  capable  of  being  reached  in  a manner  more 
effective  than  any  in  which  the  government  of  the  United  States 
can  reach  the  individual  citizen. 

Let  me  call  attention  to  the  fact  that  an  assessment  of  one 
cent  on  each  one  of  its  members  would  amount  to  $20,000.  Let 
me  call  attention  to  the  fact  that  an  assessment  of  one  cent 
a month  for  a year  would  be  a quarter  of  a million  dollars ; and 
yet  this  Court  is  asked  to  say  that,  because  they  do  not  like  as- 
sessments, or  because  they  prefer  to  call  for  voluntary  sub- 


56 


scriptions,  they  should  be  held  at  liberty  to  violate  the  injunc- 
tion. 

But,  if  you  grant  all  that,  is  it  true,  as  a matter  of  fact,  that 
this  Urgent  Appeal  was  simply  an  attempt,  in  a legitimate  way, 
to  secure  contributions  in  the  attempt  to  defend  against  this 
injunction?  The  editorial  is  very  long  and  I shall  read  only 
extracts  from  it.  It  is  found  on  page  474  of  the  original 
record. 

“This  injunction  enjoins  them  as  officials,  or  as  individuals, 
from  any  reference  whatsoever  to  the  Bucks  Stove  & Flange 
Company’s  relations  to  organized  labor,  to  the  fact  that  said 
company  is  regarded  as  unfair;  that  is,  on  an  unfair  list  or  on 
the  ‘We  Don’t  Patronize’  list  of  the  American  Federation  of 
Labor.” 

In  the  opening  sentence  he  calls  attention  to  the  fact,  in  vio- 
lation of  the  injunction,  that  the  company  is  regarded  as  un- 
fair and  that  it  is  on  the  “Unfair”  list  and  on  the  “We  Don’t 
Patronize”  list  of  the  American  Federation  of  Labor.  What 
necessity  was  there  for  thus  three  times,  in  one  sentence,  call- 
ing attention  to  the  fact  that  the  Bucks  Stove  & Range  Com- 
pany was  on  the  unfair  list,  if  the  object  was  merely  to  get 
money  for  defense?  Why  would  it  not  have  answered  their 
purpose  to  say : “We  are  engaged  in  the  litigation  of  a case 
with  the  Bucks  Stove  & Range  Company,  and  we  need  money 
for  our  defense.”  But,  instead  of  this,  in  the  opening  sentence, 
they  refer,  three  times,  to  the  fact  that  the  Bucks  Stove  & 
Range  Company  is  unfair,  is  on  the  unfair  list,  and  is  regarded 
as  unfair. 

A little  further  down  he  says : 

“With  all  due  respect  to  the  Court,  it  is  impossible  for  us 
to  see  how  we  can  comply  with  all  the  terms  of  this  injunc- 
tion.” 

Why  is  it  impossible?  It  is  not  that  there  is  a physical  im- 
possibility, but  it  is  simply  that  they  do  not  want  to  do  so. 
The  immediately  succeeding  sentence  gives  the  answer. 

Mr.  Ralston : Will  you  permit  me  to  interrupt  you  ? Mr. 
Gompers  then  answers  the  question  and  gives  the  reason. 

Mr.  Darlington:  Where  is  his  answer? 

Mr.  Ralston:  In  the  very  next  sentence. 

Mr.  Darlington : My  dear  sir,  I was  just  going  to  read 
that. 

Mr.  Ralston : You  had  passed  that. 

Mr.  Darlington : But  I had  not  passed  it.  I had  directed 
the  Court’s  attention  to  it.  He  says  that  it  is  impossible  to 
comply  with  all  the  terms  of  the  injunction,  and  here  is  his 
reason : 


57 


“We  would  not  be  performing  our  duty  to  labor  and  to  the 
public  without  discussion  of  this  injunction.” 

“Our  duty  to  the  public  and  our  duty  to  labor  overrides 
our  duty  to  the  Court.  It  is  impossible  for  us  to  obey  the  de- 
cree of  the  Court  if  it  conflicts  with  what  we  claim  is  our  duty 
to  labor  and  to  the  public. 

“Our  great  forefathers  sacrificed  even  life  in  order  that  these 
fundamental  constitutional  rights  of  free  press  and  free  speech 
might  be  forever  guaranteed  to  our  people.  We  would  be  recre- 
ant to  our  duty  did  we  not  do  all  in  our  power  to  point  out 
to  the  people  the  serious  invasion  of  their  liberties  which  has 
taken  place.  That  this  has  been  done  by  judge-made  injunc- 
tion and  not  by  statute  law  makes  the  menace  all  the  greater.” 

I would  not  have  omitted  reference  to  the  answer  to  which 
my  friend  calls  attention.  It  shows  that  this  impossibility  is 
not  a physical  impossibility,  but  it  is  simply  an  impossibility  to 
comply  with  the  decree  of  the  court  and  at  the  same  time  do 
what  these  gentlemen  thought  they  wanted  to  do,  in  the  dis- 
charge of  what  they  chose  to  designate  as  their  duty  to  labor 
and  to  the  public. 

Again : 

“The  publication  of  the  Bucks  Stove  & Range  Company  on 
the  ‘We  Don’t  Patronize’  list  of  the  American  Federation  of 
Labor  is  the  exercise  of  a plain  right.  To  enjoin  its  publication 
is  to  invade  and  deny  the  freedom  of  the  press — a right  which 
is  guaranteed  under  the  Constitution. 

“The  matter  of  attempting  to  suppress  the  boycott  of  the 
Bucks  Stove  & Range  Company,  by  injunction,  while  important, 
yet  pales  into  insignificance  before  this  invasion  and  denial  of 
constitutional  rights. 

“In  the  application  for  the  injunction  it  was  alleged  by  the 
Bucks  Stove  and  Range  Company  that  its  business  had  suffered 
seriously  from  the  refusal  of  union  workmen  and  their  friends 
to  purchase  stoves  and  ranges.  But  would  not  absolute  silence 
on  our  part  as  to  its  hostile  attitude  toward  certain  union  em- 
ployees be  dishonest?” 

I should  stop  right  here  to  say  that  the  argument  of  my 
learned  friends  that  this  is  a conflict  between  leaders  finds  no 
support  in  this  record.  The  Bucks  Stove  & Range  Company  is 
not  a leader  in  the  contest  between  capital  and  labor  in  any 
other  sense  than  that,  paying  its  workmen  by  the  price,  it 
claims  the  right  to  work  ten  hours  a day  when  715  of  its  em- 
ployees are  willing  to  work  that  long,  and  only  38  wish  not  to 
do  so. 

It  is  not,  as  the  learned  counsel  urge,  opposing  the  efforts  of 
organized  labor  to  secure  better  conditions  for  their  families  and 


58 


better  educational  opportunities  for  their  children.  That  is  not 
the  question  here.  The  question  here  is  whether  thirty-eight 
men  have  the  right  to  coerce  an  employer  into  taking  away  ten 
per  cent  of  their  earnings,  ten  per  cent  of  the  earnings  of  seven 
hundred  and  fifteen  other  men,  which  ten  per  cent  would  add 
to  the  comfort  and  to  the  educational  advantages  of  their  fam- 
ilies and  their  children. 

Again : 

“We  had  a right  to  inform  the  public  as  to  the  facts  in  the 
case.  Wage  workers,  and,  indeed  many  others,  prefer  to  give 
their  patronage  to  firms  which  employ  union  labor  and  whose 
product,  for  that  reason,  is  likely  to  be  of  a more  satisfactory 
quality  to  the  consumer. 

“If  the  champions  of  the  non-union  shops  are  so  proud  of 
their  stand  in  the  matter,  and  so  convinced  of  their  own  fair- 
ness and  wisdom,  we  really  fail  to  see  why  they  should  object 
to  the  publication  of  that  fact. 

“The  Bucks  Stove  & Range  Company,  judging  from  the 
terms  of  the  injunction,  desire  to  stifle  the  voice  of  labor  and 
enforce  a continuous  and  unbroken  silence  on  the  subject  of 
its  bad  standing  with  union  workmen. 

“But  would  not  absolute  silence  on  our  part  as  to  its  hostile 
attitude  toward  certain  union  members  be  dishonest  ? Why 
should  we  encourage  our  members  and  friends  to  buy  the 
Bucks  stoves  and  ranges  under  the  apprehension  that  this 
company  deals  fairly  with  union  labor?  Could  not  union  em- 
ployers then  accuse  us  of  unfair  discrimination,  of  trickery  and 
humbug?” 

Is  this  an  appeal  for  money  to  carry  on  a defense,  or  is 
it  an  appeal  to  these  two  million  of  men  to  continue  the  boy- 
cott? 

“It  is  a most  remarkable  injunction.  Justice  Gould  seems  to 
base  this  injunction  on  the  assumption  that  there  has  been  a 
combination  of  numbers  of  wage  earners  ‘conspire’  to  commit 
unlawful  acts.  Such  is  not  the  fact.” 

The  Court  below  found  it  was  a fact,  and  this  Court  has 
found  it  was  a fact,  but  Mr.  Gompers  has  decided  that  it  was 
not  a fact: 

“The  very  injunction  proceedings  from  which  Judge  Gould 
quoted  Judge  Taft,  and  other  precedents  he  mentions,  are  cases 
in  which  the  injunction  privilege  was  abused  by  being  wrong- 
fully applied.  Two  wrongs  do  not  make  a right  in  an  in- 
junction any  more  than  in  other  affairs  of  life. 

“Neither  coercion,  threats,  nor  conspiracy,  in  the  unlawful 
sense  have  been  resorted  to,  yet  the  whole  injunction  is  based 
upon  this  wrong  assumption.” 


59 


The  Court  below,  and  this  Court,  finds  that  there  have  been 
coercion,  threats  and  conspiracy,  unlawful  in  character. 

“This  injunction  cannot  compel  union  men  or  their  friends 
to  buy  the  Bucks  stoves  and  ranges.  For  this  reason  the  in- 
junction will  fail  to  bolster  up  the  business  of  this  firm  which 
it  claims  is  so  swiftly  declining.” 

That  is  it  will  still  be,  for  all  practical  purposes,  kept  on 
the  “Unfair”  and  “We  Don’t  Patronize”  list,  and  will  still  be 
boycotted. 

Why  this  is  true  the  sentence  immediately  following  shows : 

“Individuals  as  members  of  organized  labor  will  still  exercise 
the  right  to  buy  or  not  to  buy  the  Bucks  stoves  and  ranges. 
It  is  an  exemplification  of  the  saying  that  ‘You  can  lead  a 
horse  to  water  but  you  can’t  make  him  drink,’  and  more  than 
likely  these  men  of  organized  labor  and  their  friends  will  con- 
tinue to  exercise  their  right  to  purchase  or  not  to  purchase 
the  Bucks  stoves  and  ranges. 

“It  may  not  be  amiss  here  to  say  that  in  all  these  proceed- 
ings, whether  before  the  court  or  in  the  contest  forced  upon 
labor  by  the  Bucks  Stove  & Range  Company,  no  element  of 
personal  malice  or  ill  will  enters.  Labor  is  earnestly  desirous 
of  entering  into  friendly  relations  with  employers,  and  this  is 
none  the  less  true  of  its  desire  to  reach  an  honorable  adjustment 
and  agreement  with  the  Bucks  Stove  & Range  Company.  So 
long,  however,  as  this  Company  continues  in  its  hostile  attitude 
to  labor,  denying  it  the  right  to  organize,  discriminates  against 
union  members,  and  refuses  to  accord  conditions  of  employ- 
ment generally  regarded  as  fair  in  the  trade  it  must  expect 
retaliatory  measures;  these  measures,  always,  however,  within 
the  law  and  for  the  purpose  of  ultimately  reaching  an  honorable, 
mutually  advantageous  agreement. 

“The  publication  of  the  Bucks  Stove  & Range  Company  on 
the  ‘We  Don’t  Patronize’  list  of  the  American  Federation  of 
Labor  is  only  an  incident  in  the  history  of  the  case.  These 
stoves  might  have  been  let  as  severely  alone  by  purchasers  if 
they  had  never  been  mentioned  on  that  list.  It  is  not  the 
matter  of  removing  that  firm  from  the  list  against  which  we 
primarily  protest.  It  is  this  injunction  invading  the  freedom 
of  the  press.” 

Over  and  over  again  he  refers  to  the  fact,  prohibited  by  the 
decree,  that  this  company  has  been,  and  is  on  the  unfair  list. 

Again : 

“The  publication  of  the  Bucks  Stove  & Range  Company  and 
other  firms  on  the  ‘We  Don't  Patronize’  list  is  merely  giving 
truthful  information  at  the  request  of  our  members  as  to  whether 
or  not  certain  firms  employ  union  men  and  concede  the  other 


60 


conditions  o'f  employment  usually  granted  by  those  concerns 
which  recognize  union  labor. 

“The  air  is  filled  with  the  lamentations  of  the  innocent  vic- 
tims of  such  conspiracies,  but  do  we  ever  hear  of  these  pirates 
in  the  business  world  being  enjoined  from  continuing  their 
depredations  or  threatened  with  contempt  proceedings,  if  they 
do  not  desist  from  their  unlawful  practices  which  even  involve 
property  rights?  Never!  These  injunctions  are  applied  to 
wage  workers  exclusively,  though  they  involve  personal  rights 
and  liberties.  It  is  the  denial  of  this  equality  before  the  law 
against  which  we  protest” 

Could  there  be  a more  inflammatory  appeal  to  these  two  mil- 
lion of  men  to  disregard  these  injunctions,  and  to  treat  the 
complainant  as  still  on  the  unfair  list,  notwithstanding  the  in- 
junction? 

Mr.  Justice  Van  Orsdel : Was  there  any  proof  in  the  record 
that  the  boycott  was  continued,  after  this  injunction  order,  as 
it  had  been  carried  on  before  the  injunction  order  became 
effective  ? 

Mr.  Darlington : I think  the  record  shows  that.  There  is 
so  much  of  it  I cannot  speak  off-hand ; but  before  I close  I 
will  look  into  that  matter.  I submit,  however,  that  this  would 
be  a matter  which  is  immaterial  here.  If  these  people  have  en- 
deavored to  keep  up  the  boycott,  the  fact  of  their  failure  to  do 
so  would  be  no  answer. 

Mr.  Davenport : The  deposition  of  Mr.  Templeton,  who  was 
the  secretary  of  the  petitioner,  shows  that  since  the  23d  of 
March  the  operations  of  these  people  have  kept  up,  so  that 
they  have  reduced  the  gross  sales  from  $1,200,000  to  $600,000. 
The  record  is  full  of  proof  that  throughout  this  country  this 
warfare  has  been  kept  up. 

Mr.  Darlington : I was  aware  that  Mr.  Templeton  had  tes-r 
tified  in  that  way,  and  my  impression  was  that  it  covered  a 
time  subsequent  to  this  article. 

Mr.  Ralston : We  will  have  to  challenge  Mr.  Darlington’s 
statement  on  that  point.  There  is  nothing  to  indicate  that 
these  defendants  were  in  any  way  connected  with  such  mat- 
ters. 

Mr.  Darlington:  That  is  a question  that  is  very  easily  set- 
tled. We  will  determine  that  in  the  morning. 

Mr.  Beck : As  to  the  question  put  by  the  Court,  with  refer- 
ence to  whether  there  is  any  evidence  as  to  the  boycott  after  the 
preliminary  injunction  was  granted,  I want  to  call  the  atten- 
tion of  the  Court  and  of  Mr.  Darlington  to  the  resolution  of 
the  United  Mine  Workers,  which  was  the  most  damaging  blow 
to  the  complainant  which  was  struck  in  the  whole  warfare.  I 


61 


hope  Mr.  Darlington  will  explain  that  to  the  Court. 

Mr.  Darlington:  I was  just  about  to  explain  that. 

(The  Court  thereupon  adjourned  until  tomorrow,  Tuesday, 
April  20th,  1909,  at  10  o’clock  a.  m.) 

Washington,  D.  C.,  Tuesday,  April  20,  1909. 

The  Court  met,  pursuant  to  adjournment,  at  10  o’clock,  a.  m. 

The  arguments  of  counsel  were  continued  before  Chief  Jus- 
tice Shepard,  Justice  Robb  and  Justice  Van  Orsdel. 

Appearances : 

For  the  Appellants,  Mr.  Alton  B.  Parker  and  Mr.  Jackson 
H.  Ralston. 

For  the  Appellee,  Mr.  James  M.  Beck,  Mr.  Daniel  Davenport, 
and  Mr.  J.  J.  Darlington. 

ARGUMENT  OF  JOSEPH  J.  DARLINGTON,  ESQ. 

(Continued.) 

Mr.  Darlington:  Just  before  the  adjournment  yesterday,  the 
question  was  raised  whether  or  not  the  evidence  showed  that 
the  boycotts  had  continued  after  the  injunctions  were  granted. 
I stated  my  impression  that  they  had.  Mr.  Davenport  was 
very  positive  that  they  had,  and  Mr.  Ralston  that  they  had 
not.  At  page  175  of  the  record  Mr.  Jones  T.  Templeton — - 

The  Chief  Justice:  Page  175  of  the  present  record? 

Mr.  Darlington : Yes.  After  citing  a number  of  instances, 
he  was  asked  this  question : “Are  these  instances  since  the 
granting  of  the  injunction?  A.  Yes,  sir.  Q.  The  temporary 
injunction  and  the  permanent  injunction?  A.  I am  giving 
it  from  the  time  of  the  permanent  injunction.  Q.  The  23d 
of  March?  *A.  Yes,  sir.  Q.  Since  the  23d  of  March,  1908? 
A.  Yes,  sir.  The  Goseman-Parker  House  Furnishing  Company 
of  St.  Louis  report  the  same;  R.  H.  Kobush  Furniture  & Car- 
pet Company  of  St.  Louis  report  the  same;  Henry  McNichols 
Furniture  Company  of  St.  Louis  state  that  their  attention  has 
been  called  to  the  matter  so  often  since  the  permanent  injunction 
was  granted,  that  they  felt  compelled  to  discontinue  the  sale 
of  our  line  of  goods  entirely,  and  have  replaced  it  with  an- 
other line.  D.  Somers  & Company  of  St.  Louis,  our  largest 
customer  in  that  city,  said  that  so  much  pressure  had  been 
brought  to  bear  on  them  by  members  of  labor  organizations  of 
St.  Louis,  since  our  injunction,  that  they,  felt  compelled  to  dis- 
continue advertising  and  pushing  our  line  of  goods,  and  today 
the  line  has  been  almost  completely  replaced  by  other  makes 
of  goods.  Frank  L.  Schabb,  of  St.  Louis,  states  that  he  can 


not  push  our  goods,  owing  to  the  fact  that  he  is  continuously 
annoyed  by  prospective  purchasers  giving  him  to  understand 
that  they  are  not  allowed  to  buy  a Bucks  stove.” 

The  Court  will  find  the  whole  of  that  page  and  page  176 
taken  up  with  the  enumeration  of  these  firms  that  had  dis- 
continued the  sale  and  handling  of  the  goods  of  this  com- 
pany. 

The  Chief  Justice:  That  testimony  seems  to  be  hearsay,  does 
it  not? 

Mr.  Darlington : That  objection  was  raised. 

The  Chief  Justice:  It  is  a statement  of  one  who  was  con- 
nected with  the  complainant. 

Mr.  Darlington:  As  a salesman  who,  when  he  goes  about 
to  make  sales,  finds  people  refusing  to  take  the  goods,  because 
of  these  conditions.  This  is  one  of  the  class  of  cases  in  which, 
if  material,  hearsay  is  admissable.  This  is  a point  I did  not 
anticipate  on  my  brief.  The  Court  will  find  it  in  9 Carrington 
and  Payne,  275.  On  a trial  on  indictment  for  conspiracy  to 
procure  large  numbers  of  persons  to  assemble,  etc.,  evidence 
was  given  of  several  meetings.  It  was  proposed  to  ask  a witness, 
who  was  a superintendent  of  police,  whether  persons  complained 
to  him  of  being  alarmed  by  those  meetings.  It  was  contended 
on  behalf  of  the  defendants  that  the  persons  who  were  alarmed 
should  be  called  to  prove  that  fact.  Guerney,  Baron,  held  that 
the  fact  that  persons  made  complaint  to  a superintendent  of 
police,  of  alarm,  is  receivable. 

The  Chief  Justice:  Were  those  complaints  made  at  the  meet- 
ings, or  subsequently? 

Mr.  Darlington:  That  does  not  appear.  As  I said  to  the 
court  on  yesterday,  it  seems  to  me  that  when  we  have  shown 
the  violation  of  this  injunction,  it  is  not  encumbent  on  us  further 
to  prove  whether  or  not  the  followers  of  these  defendants  were 
influenced  by  it.  These  men  are  convicted  of  disregarding  the 
injunction.  What  results  followed  that  disobedience  of  the 
injunction  is  quite  apart  from  the  question.  On  page  177  of 
the  record  this  same  witness,  Templeton,  states  a fact  which 
is  not  hearsay: 

“State  as  to  whether  or  not  this  has  had  any  effect  upon 
the  sales  of  the  product  of  your  company? 

“A.  Our  sales  so  far  this  year  have  decreased  more  than 
fifty  per  cent  as  compared  with  our  total  sales  of  1907,  up 
to  date.” 

That  is.  not  hearsay.  Now,  I suppose  I had  just  as  well 
dispose  of  some  other  questions  which  arose  incidentally  yes- 
terday, before  proceeding  regularly.  I submitted  two  proposi- 
tions, that  the  facts  in  regard  to  a contempt  case  are  not  for 


63 


trial  by  jury,  and  secondly,  that,  on  error  in  contempt  proceed- 
ings, the  court  can  not  consider  questions  of  fact.  As  in  all 
other  common  law  cases  of  review,  the  appellate  court  is  limited 
to  consideration  of  the  points  of  law  passed  upon. 

Upon  that  point  I ask  the  court’s  attention  to  158  U.  S., 
594-6,  in  re  Debs,  holding  that,  although  questions  of  fact  are 
involved  in  contempt  proceedings,  they  are  facts  of  which  the 
court  alone  is  the  judge,  and  in  which  trial  by  jury  is  not  a 
right.  At  page  594  the  court  says : 

“Nor  is  there  in  this — ” 

That  is,  in  the  finding  of  facts  by  the  trial  court  and  judgment 
based  upon  its  findings — 

“any  invasion  of  the  constitutional  right  of  trial  by  jury. 
We  fully  agree  with  counsel  that  ‘it  matters  not  what  form 
the  attempt  to  deny  constitutional  right  may  take,  it  is  vain  and 
ineffectual,  and  must  be  so  declared  by  the  courts,’  and  we  re- 
affirm the  declaration  made  for  the  court  by  Mr.  Justice  Brad- 
ley in  Boyd  vs.  United  States,  116  U.  S.  616,635,  that  ‘it  is 
the  duty  of  courts  to  be  watchful  for  the  constitutional  rights 
of  the  citizens,  and  against  any  selfish  encroachments  thereon. 
Their  motto  should  be  obsta  principiis ! But  the  power  of  a 
court  to  make  an  order  carries  with  it  the  equal  power  to 
punish  for  a disobedience  of  that  order,  and  the  inquiry  as 
to  the  question  of  disobedience  has  been,  from  time  immemorial, 
the  special  function  of  the  court.  And  this  is  no  technical  rule. 
In  order  that  a court  may  compel  obedience  to  its  orders,  it 
must  have  the  right  to  inquire  whether  there  has  been  any 
disobedience  thereof.  To  submit  the  question  of  disobedience 
fo  another  tribunal,  be  it  a jury  or  another  court,  would 
operate  to  deprive  the  proceeding  of  its  efficiency.  In  the  Case 
of  Yates,  4 Johns.  314,  369,  Chancellor  Kent,  then  Chief  Jus- 
tice of  the  Supreme  Court  of  the  State  of  New  York,  said: 
‘In  the  case  of  the  Earl  of  Shaftesbury,  2 State  Trials,  216, 
who  was  imprisoned  by  the  House  of  Lords  for  high  contempts 
committed  against  it  and  brought  into  the  King’s  Bench,  the 
court  held  that  they  had  no  authority  to  judge  of  the  con- 
tempt, and  remanded  the  prisoner.  The  Court,  in  that  case, 
seemed  to  have  laid  down  a principle  from  which  they  have 
never  departed,  and  which  is  essential  to  the  due  administration 
of  justice.  This  principle  that  every  court,  at  least  of  the  su- 
perior kind,  in  which  great  confidence  is  placed,  must  be  the 
sole  judge,  in  the  last  resort,  of  contempts  arising  therein,  is 
more  explicitly  defined  and  more  emphatically  enforced  in  the 
two  subsequent  cases  of  the  Queen  vs.  Paty  et  ah,  and  of  the 
King  vs.  Crosby.’  And  again,  on  page  371,  ‘Mr.  Justice  Black- 
stone  pursued  the  same  train  of  observation,  and  declared  that 
all  courts,  by  which  he  meant  to  include  the  two  Houses  of 
Parliament  and  the  courts  of  Westminster  Hall,  could  have 
no  control  in  matters  of  contempt.  That  the  sole  adjudication 


64 


of  contempts,  and  the  punishments  thereof,  belonged  exclusively, 
and  without  interfering,  to  each  respective  court.'  In  Watson 
vs.  Williams,  36  Miss.  331,  341,  it  was  said:  ‘The  power  to 
fine  and  imprison  for  contempt,  from  the  earliest  history  of  jur- 
isprudence, has  been  regarded  as  a necessary  incident  and  at- 
tribute of  a court,  without  which  it  could  no  more  exist  than 
without  a judge.  It  is  a power  inherent  in  all  courts  of  record, 
and  co-existing  with  them  by  the  wise  provisions  of  the  com- 
mon law.  A court  without  the  power  effectually  to  protect  itself 
against  the  assaults  of  the  lawless,  or  to  enforce  its  orders, 
judgments  or  decrees  against  the  recusant  parties  before  it, 
would  be  a disgrace  to  the  legislation,  and  a stigma  upon  the 
age  which  invented  it/  In  Cartwright’s  Case,  114  Mass.  230, 
238,  we  find  this  language : ‘The  summary  power  to  commit 
and  punish  for  contempts,  tending  to  obstruct  or  degrade  the 
administration  of  justice,  is  inherent  in  courts  of  chancery  and 
other  superior  courts,  as  essential  to  the  execution  of  their 
powers,  to  the  maintenance  of  their  authority,  and  is  part  of 
the  law  of  the  land  within  the  meaning  of  Magna  Charta  and 
of  the  12th  Article  of  our  Declaration  of  Rights.’  ” 

And  then,  after  citing  a number  of  cases,  they  cite  Eilen- 
becker  vs.  Plymouth  County,  134  U.  S.  31,  36,  in  which  Mr. 
Justice  Miller  observes : “If  it  has  ever  been  understood  that 
contempt  proceedings  according  to  the  common  law  for  con- 
tempt of  court  have  been  subject  to  the  right  of  trial  by  jury, 
we  have  been  unable  to  find  any  instance  of  it;”  citing  Inter- 
state Commerce  Commission  vs.  Brimson,  154  U.  S.  447,  488. 
In  this  last  case  it  was  said : “Surely  it  can  not  be  supposed 
that  the  question  of  contempt  of  the  authority  of  a court  of 
the  United  States,  committed  by  a disobedience  of  its  orders, 
is  triable  of  right,  by  a jury.” 

All  the  authorities  to  which  I have  been  able  to  secure  any 
reference  whatever,  both  State  and  Federal,  agree  in  this  propo- 
sition, that  the  court  is,  itself,  the  sole  judge  of  the  facts  in  these 
contempt  cases,  that  they  are  not  triable  of  right  by  a jury. 
The  court  may,  if  it  deems  proper,  refer  an  issue  to  the  jury, 
but  there  is  no  constitutional  privilege  or  right  of  trial  by 
jury. 

This  brings  us  to  the  other  proposition,  that,  where  a court 
does  exercise  this  inherent  right  of  determining  the  facts,  its 
judgment  is  not  reviewable  by  an  appellate  court. 

Mr.  Justice  Robb:  The  other  side,  as  I understand,  base 
their  contention  upon  the  provisions  of  the  code.  Is  it  your 
contention  that  the  code  in  no  way  modifies  the  general  rule  ? 

Mr.  Darlington : In  no  way  whatever.  The  only  provision 
of  the  code  is,  instead  of  requiring  a formal  writ  of  error  in 
law  cases,  it  provides  that  any  judgment  or  decree — any  judg- 
ment on  the  law  side  or  any  decree  on  the  equity  side — may  be 
reviewed  on  appeal. 


65 


The  Chief  Justice:  Any  order  I thought  it  was.  Possibly  I 
am  mistaken. 

Mr.  Darlington:  Any  final  order  or  decree. 

The  Chief  Justice : My  recollection  is  it  is  very  broad. 

Mr.  Darlington.  Yes.  Lord  Coke  says  he  would  be  ashamed 
to  answer  any  question  as  to  a statute  without  looking  at  the 
statute.  The  point  I am  making  is  independent  of  any  question 
whether  “order”  is  included  or  not.  The  court  makes  a dis- 
tinction between  judgments  and  decrees,  and  it  would  be  no 
more  competent  to  bring  up  for  review  a contempt  proceeding, 
which  under  the  authorities  is  a common  law  proceeding,  by 
appeal,  with  all  the  testimony  in  the  case  simply  reprinted  in 
the  record,  without  being  in  any  manner  made  a part  of  the 
record  than  it  would  be  competent  in  a conviction  for  murder 
to  bring  the  case  up  by  appeal. 

Mr.  Justice  Van  Orsdel : Would  it  not  be  entirely  in  the 
power  of  Congress  to  make  a provision  of  that  kind  as  to 
the  District  of  Columbia? 

Mr.  Darlington : It  might  be,  but  it  has  not  done  it.  The 
Supreme  Court  of  the  United  States  in  half  a dozen  cases  which 
I have  mentioned  in  our  brief  here  has  held  that  the  dis- 
tinction between  common  law  and  equity  appeals  is  not  abro- 
gated by  that  provision,  that  you  can  not  bring  the  case  up  by 
writ  of  error  in  an  equity  suit,  and  that  you  can  not  bring 
it  up  by  appeal  in  an  action  at  law.  It  has  been  customary 
in  some  cases  of  doubt  to  bring  the  case  up  both  ways,  as  in 
the  case  of  Ormsby  vs.  Webb. 

The  Chief  Justice:  Several  times  they  have  asked  for  a writ 
of  error  and  an  appeal  both,  where  they  were  doubtful  whether 
it  was  a common  law  case  or  an  equity  case,  probate  cases  for 
instance,  and  of  course  they  could  come  here  by  the  same 
process. 

Mr.  Darlington : The  same  process  of  appeal — 

The  Chief  Justice:  And,  when  they  come  here,  treat  it  as 
a law  or  equity  case,  according  to  the  real  character  of  the 
case. 

Mr.  Darlington : And  they  must  come  here  on  a record,  as 
a law  case  or  an  equity  case. 

The  Chief  Justice:  Yes. 

Mr.  Darlington:  Now  this  case  here  is  upon  an  equity  rec- 
ord, without  any  bill  of  exceptions,  without  any  agreed  state- 
ment of  facts,  and  without  any  order  of  the  court  making  the 
depositions  a part  of  the  record,  which,  as  I will  show  when 
I get  to  that  part  of  the  case,  the  Supreme  Court  of  the  United 
States  holds  is  indispensable  for  that  purpose. 


66 


The  Chief  Justice:  The  facts  must  be  brought  up  by  a 
bill  of  exceptions,  but,  this  being  an  ancillary  question  in  an 
equity  case,  the  question  is  whether  it  is  covered  by  the  same 
rule. 

Mr.  Darlington : I think  I will  satisfy  the  court  by  an  ex- 
plicit declaration  by  the  Supreme  Court  of  the  United  States 
that  an  adjudication  of  contempt  in  an  equity  suit  is  as  dis- 
tinct and  separate  a common-law  judgment  as  if  it  were  an 
indictment,  found  by  a grand  jury,  and  a judgment  of  convic- 
tion upon  it.  At  present,  however,  I am  dealing  with  the 
question  that,  on  an  appeal  fropi  a proceeding  in  contempt,  the 
appellate  tribunal  has  no  jurisdiction  to  review  the  facts  and 
can  decide  only  the  questions  of  law  involved.  I read  In  re 
Debs  in  support  of  the  position  that  the  facts  in  a contempt  case 
are  for  trial  by  the  court,  and  not  by  a jury.  Now,  if  such  a 
case  comes  before  the  court  of  review,  then,  like  any  other 
common-law  case,  the  court  can  only  review  the  questions  of 
law  decided  by  the  court  below,  and  can  not  review  the  facts. 
(194  U.  S.  336.)  That  was  the  case  of  Bessette  vs.  The  Con- 
key  Company.  There  is  a full  and  elaborate  review  in  that 
case  of  the  question  whether  an  adjudication  in  contempt  can 
be  reviewed  at  all  in  the  Supreme  Court  of  the  United  States. 
Down  to  the  act  of  1891  that  court  had  held  steadily  and  con- 
sistently that  there  could  be  no  appeal  to  that  court  in  any 
contempt  proceeding,  upon  the  ground,  pointed  out  here,  that, 
whatever  the  nature  of  the  action  or  the  suit,  an  adjudication 
in  contempt  is  a criminal  proceeding,  and  the  judgment  is  a 
criminal  judgment,  and  that  the  Supreme  Court  of  the  United 
States  had  no  jurisdiction  in  criminal  cases.  Now,  the  act 
of  1891  gave  them  criminal  jurisdiction  in  certain  cases.  My 
associate  calls  my  attention  to  the  fact  that  the  case  last  cited 
came  to  the  Supreme  Court  of  the  United  States  on  a certifi- 
cate from  the  Circuit  Court  of  Appeals.  In  this  case,  certain 
persons  who  were  not  parties  to  the  appeal  had  been  found 
guilty  of  contempt,  and  the  Circuit  Court  of  Appeals  certified 
to  the  Supreme  Court  certain  questions.  One  was,  whether 
there  was  any  criminal  review  at  all.  The  second  was,  whether 
these  judgments  in  contempt  were  not  interlocutory  judgments, 
and  therefore  incapable  of  being  reviewed  until  there  was  a 
final  judgment  in  the  case. 

The  Chief  Justice:  Is  it  your  contention  that  this  is  a 
criminal  proceeding? 

Mr.  Darlington : Yes. 

The  Chief  Justice:  You  are  standing  upon  that  proposi- 
tion? 

Mr.  Darlington : Yes. 

The  Chief  Justice:  That  it  is  a criminal  proceeding? 

67 


Mr.  Darlington:  Yes.  The  third  question  certified  was 
whether,  if  the  case  were  reviewable  at  all,  it  would  be  by 
appeal  like  an  equity  suit,  or  by  writ  of  error.  That  is  the 
question  we  have  here.  After  a discussion  covering  a number 
of  cases,  which  held  in  effect  that,  prior  to  the  act  of  1891, 
the  Supreme  Court  had  no  jurisdiction  in  contempt  cases,  be- 
cause they  were  criminal  cases  and  that  court  had  no  criminal 
jurisdiction,  it  declared  that,  by  the  act  of  1891,  “appellate  jur- 
isdiction was  given  in  all  criminal  cases  by  writ  of  error,  either 
from  this  court  or  from  the  Circuit  Court  of  Appeals.  As,  there- 
fore, the  ground  upon  which  a review  by  this  court  of  a final 
decision  in  contempt  cases  was  denied  no  longer  exists,  the 
decisions  themselves  cease  to  have  controlling  authority,  and 
whether  the  circuit  court  of  appeals  have  authority  to  review 
decisions  in  contempt  in  the  District  and  Circuit  courts,  depends 
upon  whether  such  questions  are  criminal  cases — ” 

The  precise  identical  question  we  are  considering  here : Are 
they  criminal  cases? 

“That  they  are  criminal  in  their  nature  has  been  constantly 
affirmed.  The  orders  imposing  punishments  are  final.  Why, 
then,  should  they  not  be  reviewed  as  final  decisions  in  other 
criminal  cases?  It  is  true,  they  are  peculiar  in  some  respects, 
rightfully  styled  sui  generis.  They  are  triable  only  by  the  court 
against  whose  authority  the  contempts  are  charged.  No  jury 
passes  upon  the  facts,  no  other  court  inquires  into  the  charge — ” 
citing  a number  of  cases.  Then  it  states  what  I have  already 
quoted,  that  the  facts  are  for  trial  by  the  court — (In  re  Debs.), 
after  which  the  opinion  goes  on  to  say : 

“But  the  mode  of  trial  does  not  change  the  nature  of  the 
proceeding,  or  take  away  the  finality  of  the  decision.  So  then, 
by  section  6 of  the  Courts  of  Appeals  Act,  the  Circuit  Courts 
of  Appeals  are  given  jurisdiction  to  review  ‘the  final  decision 
in  the  District  Court  and  the  existing  Circuit  Courts  in  all 
cases  other  than  those  provided  for  in  the  preceding  section 
of  this  act,  unless  otherwise  provided  by  law,’  and  the  preceding 
section  gives  to  this  court  jurisdiction  to  review  convictions  in 
only  capital  or  otherwise  infamous  crimes,  and  no  other  pro- 
vision is  found  in  the  statutes  for  a review  of  the  final  order  in 
contempt  cases,  upon  what  satisfactory  ground  can  it  be  held 
that  the  final  decisions  in  contempt  cases  in  the  District  or 
Circuit  courts  are  not  subject  to  review  by  the  Circuit  Court 
of  Appeals?” 

That  is,  they  are  criminal  cases,  falling  within  the  class  of 
capital  or  otherwise  infamous  crimes,  and  hence  are  subject  to 
review. 

“Considering  only  such  cases  of  contempt  as  the  present — 
that  is,  cases  in  which  the  proceedings  are  against  one  not  a 
party  to  the  suit,  and  can  not  be  regarded  as  interlocutory — ” 

I want  to  invite  the  attention  of  the  court  to  the  fact  that 


68 


in  this  case  the  Court  limits  its  decision  to  the  case  of  a per- 
son other  than  the  parties  to  a suit,  not  in  connection  with  the 
inquiry  whether  it  is  a criminal  case  or  not,  but  because  that 
disposes  of  the  question  whether  the  order  of  contempt  in  the 
case  before  the  court  was  an  interlocutory  judgment.  In  the 
case,  the  only  proceeding  in  it  against  the  party  appealing  was 
his  commitment  for  contempt. 

“Considering  only  such  cases  of  contempt  as  the  present — that 

is,  cases  in  which  the  proceedings  are  against  one  not  a party 
to  the  suit,  and  which,  therefore,  could  not  be  regarded  as  inter- 
locutory— 'we  are  of  opinion  that  there  is  a right  of  review  in 
the  Circuit  Court  of  Appeals.  Such  review  must,  according 
to  the  settled  law  of  this  court,  be  by  writ  of  error/  citing 
Walker  vs.  Dreville,  12  Wall.  440;  Deland  vs.  Platte  County,  155 
U.  S.  221 ; Bucklin  vs.  The  United  States,  159  U.  S.  680.  On 
such  a writ  only  matters  of  law  are  considered.  The  decision  of 
the  trial  tribunal,  court  or  jury,  deciding  the  facts,  is  conclusive 
as  to  them.” 

In  other  words,  under  In  re  Debs,  a jury  trial  is  not  a mat- 
ter of  right.  The  court  alone  may  decide  the  facts;  the  court 
if  it  chooses  to  do  so  may  refer  the  question  to  a jury,  but, 
whether  the  facts  are  decided  by  the  court  or  by  a jury,  the 
finding  is  as  to  them  conclusive,  and  the  appellate  tribunal  can 
consider  only  matters  of  law. 

The  Chief  Justice:  What  was  the  Conkey  case?  How  were 
the  parties  outside  charged  with  violating  the  order?  What 
was  the  nature  of  the  contempt  ? 

Mr.  Darlington : The  nature  of  the  contempt,  I think,  is 
not  stated  in  the  opinion. 

Mr.  Beck:  It  is  one  of  those  labor  injunctions. 

Mr.  Darlington:  The  injunction  restrained  the  defendants, 
their  confederates,  agents  and  servants,  etc.  A person,  not  a 
party,  but  with  knowledge  of  the  restraining  order,  had  violated 

it. 

Of  course  there  may  be  many  cases  in  which  persons  not  a 
party  to  a suit  may  be  guilty  of  contempt.  For  example : Take 
the  Savin'  case,  where  one  not  a party  to  the  suit  tampered 
with  a witness. 

The  Chief  Justice:  Whether  it  was  a violation  by  a party, 
or  a contempt  of  court,  it  had  no  relation  to  the  cause  of  action 
generally  as  to  the  parties  generally  who  were  before  the  court. 

Mr.  Darlington:  It  was  an  injunction  forbidding  these  or- 
ganized labor  parties  from  interfering  with  the  complainant’s 
business.  A member  of  organized  labor  who  was  not  a party  to 
the  suit,  knowing  of  the  injunction,  violated  it.  If  he  had 
been  a party  to  the  suit,  the  court  intimates  that  there  might 
have  been  a question  whether  he  would  not  have  to  wait  until 


69 


after  final  decree  before  appealing.  Not  being  a party  to  the 
suit,  the  order  committing  him  was  not  an  interlocutory,  but 
a final  order  as  to  him,  and,  therefore,  might  be  reviewed 
without  waiting  until  the  final  decree;  held,  it  could  be  brought 
up  only  by  a writ  of  error,  as  a common-law  proceeding,  and  one 
in  which  the  court  could  not  consider  the  facts,  but  matters 
of  law  only. 

In  the  same  volume  (194  U.  S.  458)  that  Bessette  vs.  Conkey 
Co.  is  followed  by  the  case  of  the  Christiansen  Engineering 
Company.  In  that  case  there  had  been  a kind  of  hybrid  in- 
junction, that  is,  an  injunction  or  order  facing  both  ways;  one 
both  allowing  compensation  and  inflicting  punishment — imposing 
a fine  for  a contempt,  part  of  which  went  to  a party  as  com- 
pensation and  the  other  part  to  the  Government.  Following  the 
analogy  in  Worden  vs.  Searls,  the  lower  court  had  held  that, 
inasmuch  as  a part  of  this  fine  went  to  the  complainant,  and 
was  an  actual  money  decree,  a civil  remedy,  it  might  be  brought 
up  by  appeal.  The  case  was  brought  to  the  Supreme  Court  of 
the  United  States,  which  reversed  this  ruling,  holding  that, 
if  any  part  of  the  penalty  went  to  the  Government  and  not  to 
the  opposing  party,  as  to  that  part  of  the  penalty  it  was  a pun- 
ishment for  violating  the  dignity  of  the  court,  which  could  come 
up  only  by  error  and  not  by  appeal,  the  distinction  being  between 
a proceeding  in  which  the  fine  is  imposed  by  way  of  compensa- 
tion t6  the  party  injured  by  the  disobedience,  and  where  it  is 
by  way  of  punishment  for  an  act  done  in  contempt  of  the 
power  and  authority  of  the  court,  as  pointed  out  in  the  Bes- 
sette case,  and  in  some  other  cases  referred  to  in  the  opinion. 
After  referring  to  those  cases,  the  court  concludes : 

“In  the  present  case,  however,  the  fine  payable  to  the  United 
States  was  clearly  punitive  and  in  vindication  of  the  authority 
of  the  court,  and,  we  think,  as  such  it  dominates  the  proceed- 
ings and  fixes  its  character.  Considered  in  that  aspect  the 
writ  of  error  was  justified,  and  the  Circuit  Court  of  Appeals 
should  have  taken  jurisdiction — ” on  a writ  of  error,  and  not  by 
requiring  the  case  to  be  brought  up  on  appeal. 

Still  another  contempt  authority  is  the  recent  case  of  Continen- 
tal Gin  Company  vs.  Murray  & Company,  Circuit  Court  of 
Appeals,  Third  Circuit,  decided  in  June  of  last  year,  the  opinion 
being  by  Mr.  Justice  Moody.  This  was  a proceeding  in  con- 
tempt against  a party  to  the  suit. 

Mr.  Ralston : The  punishment  for  contempt  was  against  one 
party  to  the  suit? 

Mr.  Darlington:  This  is  reported  in  162  Fed.  Rep.,  page  873. 
The  defendant  in  error,  Murray  & Company,  brought  suit 
against  the  plaintiff  in  error,  the  Continental  Gin  Company,  al- 
leging an  infringement  of  a patent.  The  Circuit  Court  had  en- 
tered an  interlocutory  decree  for  an  injunction  against  the  Con- 
tinental Gin  Company,  of  which  decree  the  other  plaintiffs  in 


70 


error  had  due  notice.  “Subsequently  on  motion  of  the  Murray 
Company,  these  plaintiffs  in  error  were  adjudged  by  the  Circuit 
Court  guilty  of  contempt  for  disobedience  of  the  injunction, 
and  ordered  to  pay  a fine  of  $250  for  the  use  of  the  United 
States,  $500  to  the  complainants,  as  counsel  fee,  and  the  cost 
of  the  proceeding.  This  order  was  stayed,  upon  the  giving  of 
the  bond,  pending  appeal.” 

It  is  a case,  then,  of  a judgment  for  contempt  against  both 
a party  to  the  suit,  and  against  other  persons  who  were  not 
parties  to  the  suit.  Says  the  court : 

“It  is  settled  that  a judgment  like  this  may  be  reviewed  in 
this  court  by  writ  of  error.  (Matter  of  Christiansen  Engineer- 
ing Company,  194  U.  S.) — which  was  a case  of  an  injunction 
against  a party  to  the  suit  exclusively.  But  upon  that  writ, 
only  matters  of  law  can  be  considered.  (Bessette  vs.  W.  B. 
Conkey  Company,  194  U.  S.  324.)  The  assignments  of  error 
argued  before  us  seem  chiefly,  to  say  the  least,  to  deal  with 
matters  of  fact.  Where,  upon  writ  of  error,  the  plaintiff  in 
error  sought  to  review  the  facts,  the  Supreme  Court  has  recent- 
ly said : ‘But  this  overlooks  the  vital  distinction  between  ap- 
peals and  writs  of  error  which  has  always  been  observed  by  this 
court,  and  recognized  in  legislation.  An  appeal  brings  up  ques- 
tions of  fact  as  well  as  of  law,  but  upon  a writ  of  error  only 
questions  of  law  apparent  on  the  record  can  be  considered,  and 
there  can  be  no  inquiry  whether  there  was  error  in  dealing  with 
questions  of  fact.’  ” 

Of  course  with  us  an  appeal  brings  up  either  a common  law 
cause  or  an  equity  cause;  but  it  brings  up  a common  law  cause 
for  the  purpose  and  with  the  jurisdiction  to  deal,  only,  with 
questions  of  law  and  not  with  questions  of  fact;  and,  if  I 
am  correct  in  the  position  that  a proceeding  in  contempt,  al- 
though arising  out  of  an  equity  suit,  is  a common  law  proceed- 
ing, then  it  follows  that  when  the  appeal  brings  the  case  here, 
it  brings  a common  law  case  and  we  must  have  a common  law 
record.  The  court  continued : 

“There  is,  however,  an  even  more  fundamental  difficulty  in  this 
cause.  There  is  no  record  in  the  proper  sense  of  the  word,  in 
which  the  assignments  of  error  can  be  applied.  The  cause 
was  heard  in  the  Circuit  Court  upon  affidavits,  with  exhibits  at- 
tached. There  was  no  finding  of  facts,  nothing  in  the  nature 
of  a special  verdict,  nor  a request  for  a ruling  upon  the  facts 
nor  upon  any  question  of  law,  and  no  bill  of  exceptions.  There 
was  a general  finding  made  by  the  court,  ‘That  the  said  de- 
fendants are  in  contempt  of  the  injunction  heretofore  issued  in 
this  cause.’  In  a case  where  the  trial  court  set  aside  its  judg- 
ment, rendered  and  satisfied  seventeen  years  before,  the  Su- 
preme Court,  with  expressed  hesitation,  looked  into  the  affidavits, 
saying:  ‘As  the  order  setting  aside  the  original  judgment  refers 
to  the  notice  of  motions  and  annexed  affidavits,  as  the  foundation 


71 


of  that  order,  and  identifies  those  papers  as  they  are  found 
in  the  transcript,  we  are  of  opinion  that  they  may  be  consid- 
ered as  a part  of  the  record  so  far  as  the  question  of  the 
authority  of  the  court  to  make  that  order  is  involved/  That  is, 
on  a question  of  jurisdiction  the  affidavits  which  were  printed 
in  the  record  as  the  depositions  are  here,  could  be  looked  into 
only  because  the  lower  court  in  its  opinion  had  identified  them 
and  declared  them  to  be  the  basis  of  its  action.  Looking  to 
these  affidavits,  in  connection  with  what  is  more  strictly  a part 
of  the  record,  the  court  held  that  the  order,  after  the  term  had 
expired,  was  beyond  the  authority  of  the  court.  It  is  true  that, 
in  the  case  at  bar,  the  judgment  recited  that  the  cause  was 
heard  ‘upon  affidavits  in  support  of  and  in  opposition  to’  the 
motion,  but  the  affidavits  were  not,  as  in  the  case  cited,  specifically 
identified.” 

In  this  case  there  is  no  identification  by  the  court  of  any  of 
these  depositions. 

“We  think  this,”  continues  the  opinion,  “together  with  the 
agreement  of  the  parties  to  print  the  affidavits  in  the  record,  is 
not  enough  to  take  the  case  out  of  the  general  rule  that,  in 
the  absence  of  finding  of  facts,  a special  verdict  or  a request 
for  a ruling,  and  a bill  of  exceptions,  the  evidence  taken  in  the 
court  below — is  no  part  of  the  record.  In  Suydam  vs.  Wil- 
liamson, 20  How.  427,  it  was  said : ‘Evidence,  whether  written 
or  oral,  and  whether  given  to  the  court  or  the  jury,  does  not 
become  a part  of  the  record  unless  made  so  by  some  regular 
proceeding  at  the  time  of  the  trial  and  before  the  rendition  of 
the  judgment/  ” 

Was  that  done  in  this  case? 

The  court  cites  a number  of  authorities  which  I will  not 
read.  They  will  be  found  in  the  opinion. 

Applying  this  rule  to  the  record,  it  leaves  nothing  in  it  except 
the  order  for  the  attachment,  the  order  to  show  cause,  and 
the  judgment. 

Now,  in  this  case  there  is  no  semblance  of  an  order  of  d:he 
court,  either  before  the  judgment  or  afterward,  making  these 
depositions,  which  compose  the  bulk  of  this  record,  part  of 
the  record ; and  in  the  case  last  cited  the  court  declares  that  even 
an  agreement  between  counsel  to  print  them  as  a part  of  the 
record  does  not  make  them  so,  and  the  reviewing  court  can 
not  consider  them  unless  they  are  made  a part  of  the  record 
by  the  court,  specifically. 

This  somewhat  anticipates  one  feature  of  this  case  about 
which  very  little  has  been  said,  namely,  the  motion  to  dis- 
miss, on  the  ground  that  there  is  no  appeal  here  which  this 
court  can  consider.  That  motion  is  on  three  grounds:  First, 
that  the  judgment  of  the  court  below  is  reviewable  by  writ  of 


72 


error  only,  and  not  by  appeal ; secondly,  that  the  record  contains 
no  bill  of  exceptions,  agreed  statement,  or  other  appropriate 
basis  for  a review  of  the  judgment  in  this  court;  and,  thirdly, 
that  the  appeal  presents  no  case  susceptible  of  review  by  the 
court  upon  the  appeal  therein.  These  three  grounds  amount  to 
one,  namely,  that  this  is  a common-law  proceeding,  and  we  have 
here  no  common-law  record. 

I want  to  say  to  the  court,  outside  of  the  record,  but  I am 
sure  my  friends  will  agree  with  me  that  I am  stating  the  fact, 
that  there  has  been  no  disposition  on  the  part  of  the  appellee 
in  this  case  to  have  this  case  go  off  on  any  technical  ground. 
This  defect  in  the  appeal,  and  the  authorities  on  which  we  are 
now  contending  it  is  improper,  were  called  to  the  attention  of 
opposing  (counsel  in  the  court  below  during  the  term,  and 
within  two  days  after  the  judgment,  with  a proposition  to 
reopen  the  latter  and  make  up  a proper  bill  of  exceptions  in 
order  to  bring  the  case  properly  here.  My  friends  may  have 
some  answer  to  the  authorities  I have  read.  We  are  not  advised 
of  them.  I have  called  the  court’s  attention  to  the  authorities 
upon  which  the  motion  rests,  and  to  which  so  far  no  answer  has 
been  made — we  believe  none  can  be. 

Mr.  Justice  Van  Orsdel : They  all  appear  on  your  brief? 

Mr.  Darlington : They  all  appear  on  the  brief.  I will  say 
to  your  Honors  that  we  are  not  here  referring  to  the  necessity 
of  an  actual,  technical  writ  of  error.  We  concede  that  a com- 
mon-law case  may  be  brought  to  this  court  upon  appeal  under  the 
terms  of  the  Code,  just  as  it  could  have  been  done  to  the 
General  Term,  before  this  court  was  created.  Both  common- 
law  judgment  and  equity  decrees  were  brought  to  the  General 
Term  by  appeal,  and  not  by  writ  of  error;  but,  as  the  Supreme 
Court  has  in  a number  of  cases  pointed  out,  that  does  not 
abolish  the  distinction  between  common  law  records  and  equity 
records.  That  does  not  impose  upon  the  appellate  tribunal  the 
obligation,  nor  give  it  the  power,  to  review  the  facts  in  a law 
case,  or  to  perform  any  other  duty,  upon  a record  which  con- 
tains no  exceptions  and  sets  forth  no  objections  to  any  part  of 
the  action  of  the  court  below,  but  simply  prints  five  or  six  hun- 
dred pages  of  depositions,  which  are  not  made  a part  of  the 
records  by  any  appropriate  proceeding,  and  asks  the  court  to 
review  the  facts  and  find  in  them  error,  if  it  can  do  so. 

Another  authority  upon  the  question  to  which  I have  referred, 
namely,  that  a proceeding  in  contempt,  although  it  grows  out 
of  an  equity  suit,  is  a common-law  proceeding,  a criminal  case, 
is  the  leading  case  of  New  Orleans  vs.  Steamship  Company,  20 
Wall.,  392.  I call  it  the  leading  case,  because  it  is  quoted 
in  almost  every  subsequent  case  upon  the  subject.  In  it  the 
court  says : 

“Contempt  of  court  is  a specific  criminal  offense.  The  im- 


73 


position  of  the  fine  was  a judgment  in  a criminal  case.  That 
part  of  the  decree  is  as  distinct  from  the  residue  as  if  it  were 
a judgment  upon  an  indictment  for  perjury  committed  in  a de- 
position read  at  the  hearing.” 

Could  anything  be  more  absolutely  conclusive  on  this  question 
than  this  authority? 

So,  in  re  Kearney,  7 Wheaton,  43 : 

“When  a court  commits  a party  for  contempt,  their  adjudica- 
tion is  conviction,  and  their  commitment  in  consequence  is  ex- 
ecution. And  so  the  law  was  settled  upon  full  deliberation  in 
the  case  of  Brass  vs.  Crosby,  Lord  Mayor  of  London,  3 Wilson, 
188.” 

That  is  the  statement  of  the  Supreme  Court  in  re  Kearney, 
7 Wheaton,  43. 

I will  not  delay  the  court  further  on  this  point.  There  are 
other  authorities  that  are  in  our  brief.  We  have  confined  our- 
selves to  citations  from  the  Supreme  Court  of  the  United  States. 
There  are  a great  many  cases,  because  the  subject  is  a very 
large  one,  and  there  are  very  many  decisions.  So  far  as  I 
know,  they  are  uniform.  The  Supreme  Court,  in  repeated  de- 
cisions, has  held  that  a proceeding  in  contempt,  although  aris- 
ing out  of  an  equity  suit,  is  a criminal  case,  and  just  as  dis- 
tinct from  the  equity  suit  as  though  it  were  a trial  in  a crimi- 
nal case  upon  indictment  found  by  a grand  jury.  The  only 
exception  to  that  rule  is  illustrated  by  the  case  of  Worden  vs. 
Searls,  121  U.  S.  14,  17,  and  that  case  singularly  illustrates  the 
maxim  that  the  exception  proves  the  rule.  In  Worden  vs. 
Searls,  the  action  was  in  equity  for  the  infringement  of  a 
patent,  and  there  was  an  injunction  against  the  defendant, 
forbidding  him  to  continue  the  infringement  pending  the  suit — 
an  injunction  pendente  lite.  It  was  not  a third  person,  but  the 
enjoined  defendants  who  infringed  or  disobeyed  that  injunction, 
twice,  during  the  progress  of  the  case.  In  each  instance  the 
court  referred  the  cause  to  an  examiner  to  ascertain  the  amount 
of  the  profit  resulting  from  the  infringement.  Upon  each  of 
those  references  the  court  passed  an  order  fining  the  defendant 
the  amount  of  the  profit  which  he  had  made  by  the  infringement, 
and  in  addition,  the  cost  to  the  complainant  of  prosecuting  the 
contempt  proceeding,  and  directed  these  fines  to  be  paid  to  the 
complainants.  In  other  words,  under  the  guise  or  form  of  a 
contempt  proceeding,  it  accorded  simply  a civil  remedy,  a civil, 
pecuniary  remedy  to  the  complainants  for  the  infringement  of 
the  injunction. 

Mr.  Justice  Van  Orsdel : Awarded  damages? 

Mr.  Darlington : Yes.  The  Supreme  Court  said  it  would  not 
criticize  the  propriety  of  that  action  at  all,  as  it  was  not  necessary 
to  do  so  in  that  case.  And  it  held  that  the  case  might  be  brought 


74 


up  by  appeal,  because  it  was  not  a punishment  at  all,  but  prac- 
tically a civil  proceeding  to  recover  damages  for  infringement, 
and  in  such  a case  as  that,  they  would  entertain  an 
appeal  from  the  order  in  the  contempt  case.  The  lower 
court  in  the  Christiansen  case  held  that,  where  the  fine  went 
partly  to  the  government  and  partly  to  the  complainant,  the  case 
should  come  up  by  appeal  and  not  by  error.  The  Supreme  Court 
reversed  that,  holding  that  if  any  part  went  to  the  government 
it  must  come  up  by  writ  of  error. 

And  now  we  come  to  a fact  of  the  Worden-Searls  case  which 
is  extremely  interesting  and  I think  is  entirely  conclusive  of 
every  legal  question  involved  in  this  case.  The  Supreme  Court, 
entertaining  the  cause'  on  appeal  for  the  reasons  which  I have 
stated,  held  that  the  power  of  the  court  to  grant  the  injunction 
depended  on  whether  there  was  an  infringement;  that  this,  in 
turn,  depended  upon  whether  the  patent  was  valid ; that  the 
patent  was  void,  that,  therefore,  the  injunction  fell,  and  the 
contempt  proceedings  fell  with  it;  that  the  case  must  be  referred 
back  to  the  trial  court  with  instructions  to  dismiss  the  bill,  and 
that  with  the  reversal  of  the  decree  and  the  dismissal  of  the 
bill  must  go  the  fines  in  the  contempt  proceeding,  because  those 
fines  were  merely  fines  to  the  complainant  for  the  infringement 
of  his  alleged  patent,  when  he  did  not  have  any.  But  the  bill 
was  to  be  dismissed  “without  prejudice  to  the  power  and  right 
of  the  circuit  court  to  punish  the  contempt  referred  to.  The 
preliminary  injunction  was  in  force  until  set  aside.” 

Now,  this  was  not  the  case  of  a partial  modification  such 
as  we  have  here,  but  a case  of  utter  sweeping  out  of  the  whole 
case  from  the  court,  the  decree,  the  fines,  the  bill  and  all. 

The  Chief  Justice : If  the  court  decree  violated  a Constitu- 
tional provision,  then  the  decree  would  be  absolutely  void,  but 
the  matter  of  whether  a patent  was  void  or  not  was  a matter 
that  was  within  the  jurisdiction  of  the  court. 

Mr.  Darlington:  I hope  your  Honor  has  not  made  up  your 
/mind  that  if  a court  decides  a case  against  a Constitutional  right 
its  action  affects  the  question  of  jurisdiction. 

The  Chief  Justice:  No,  not  that;  but  I mean  that  if  the 
court  exceeds  its  constitutional  power  by  an  order  in  violation 
of  the  Constitution  so  much  of  that  order  must  necessarily  be 
void,  must  it  not? 

Mr.  Darlington:  That,  I think,  is  contrary  to  all  decisions. 
Whether  the  order  is  void  or  not  depends  on  whether  the  court 
had  jurisdiction  of  the  parties  and  the  subject  matter.  If  the 
court  erred  in  construing  the  law,  either  the  statutory  law  or 
the  common  law,  if  it  had  jurisdiction,  its  order  must  be  obeyed. 

Mr.  Justice  Van  Orsdel : But  if  it  errs  in  exceeding  its  juris- 
diction to  some  extent — does  it  go  that  far? 


75 


Mr.  Darlington:  No,  sir;  but  the  point  I am  making  is  that 
if  the  court  misinterprets  the  Constitution — if  a question  of 
constitutional  right  was  presented  between  the  parties,  the  court 
either  has  the  right  to  hear  and  determine  that  question  or  it 
has  not.  If  it  has  the  right  to  hear  and  determine  the  question, 
then  the  fact  that  it  determines  it  erroneously  does  not  affect 
its  jurisdiction.  That  must  necessarily  be  true,  because  the  court 
has  no  more  power  to  take  away  from  a man  a statutory  right 
than  it  has  to  take  away  from  him  a constitutional  right,  and 
has  no  more  power  to  take  from  a man  a common-law  right  than 
a statutory  right.  The  test  is,  has  it  the  power  to  hear  and 
determine  the  cause?  If  it  has  that  power,  then  its  order  must 
be  obeyed  until  some  competent  tribunal  sets  it  aside. 

The  Chief  Justice : But  still  the  question  in  this  case  is,  had 
the  court  the  power  to  enjoin  the  publication?  Now  a majority 
of  the  court  held  that  it  did,  if  that  publication  was  a step  in 
a criminal  conspiracy,  but  the  power  to  enjoin  it  is  a question 
of  the  jurisdiction  of  the  court. 

Mr.  Darlington:  That  existant  power  does  not  determine  the 
question  of  the  jurisdiction  of  the  court,  as  I undertake  to  say. 
In  the  Worden  case  the  court  had  no  power  to  enjoin  the  de- 
fendant from  infringing  a patent  that  was  a void  patent,  but  it' 
did  have  power  to  decide  the  question.  If  the  record  presented 
a case  which  called  upon  the  court  to  exercise  its  right  to  hear 
and  determine  the  question,  that  was  jurisdiction,  and  an  error 
in  the  exercise  of  that  power  does  not  destroy  the  jurisdiction. 
And  your  Honors  can  see  how  essential  this  is  to  orderly  pro- 
cedure. If  in  this  case,  or  in  any  case,  a litigant  who  is  dissat- 
isfied with  the  decision  of  a question  upon  an  application  for  a 
restraining  order,  or  with  a final  decree,  can  set  up  his  judgment 
against  that  of  the  court  and  can  say,  as  these  parties  have 
said : “We  know  we  are  violating  this  order ; we  are  going  to 
keep  on  violating  it,  we  do  not  agree  with  the  court;  the  court 
has  decided  that  the  constitutional  privilege  or  freedom  of 
speech  and  press  does  not  allow  us  to  say  or  do  certain  things 
for  an  unlawful  purpose,  but  we  claim  that  it  does,  and  we  are 
going  to  keep  on  doing  them — ” if  in  this  case  that  course  can 
be  pursued,  it  can  be  pursued  in  any  case.  Any  litigant  may 
defy  the  power,  the  authority  of  the  court,  and  if  on  final 
hearing  the  appellate  court  may  think  that  the  court  below  went 
too  far;  not  that  it  did  not  have  jurisdiction  to  decide  the  case, 
but  that  it  did  not  have  power  to  decide  it  in  the  way  it  did — 

The  Chief  Justice:  That  it  committed  error. 

Mr.  Darlington : Committed  error.  The  point  I want  to 
make  is  that  jurisdiction  does  not  in  any  manner  involve  the 
correctness  of  the  decision.  Jurisdiction  is  the  right  to  hear  a 
question  and  decide  it,  and  the  authorities  are  that  even  on 
constitutional  questions,  if  the  court  has  the  right  to  decide  a 
question  at  all,  that  constitutes  jurisdiction,  and  if  it  decides  a 
constitutional  question  erroneously  that  is  but  error. 


76 


The  Chief  Justice : There  is  no  difference  about  that  propo- 
sition. The  question  is  whether  the  court  has  jurisdiction  at 
all  in  the  particular  thing,  or  whether  having  jurisdiction  of  it,  it 
exceeds  its  jurisdiction,  goes  beyond  the  power  given  to  it. 

Mr.  Darlington:  Let  us  see  if  we  can  bring  that  down  to  a 
concrete  proposition.  This  court  has  said  in  its  opinion — I 
think  the  court  has  agreed  to  this  proposition — that  these  defend- 
ants could  not  be  enjoined  from  distributing  the  Federationist. 
They  could  be  enjoined  from  printing  in  the  unfair  list  in  the 
Federationist  the  name  of  the  complainant. 

Mr.  Justice  Von  Orsdel : For  the  purpose  of  a boycott. 

Mr.  Darlington:  For  the  purpose  of  a boycott,  but  they 
could  not  be  enjoined  generally  from  issuing  the  Federationist, 
though  with  that  list  in  it.  Had  the  court  below  the  right  to 
decide  that  question  in  one  way  or  the  other?  The  complainant 
filed  a bill  alleging  that  they  were  doing  this  thing,  and  that  it 
had  a right  to  an  injunction  against  them.  Had  the  court  below 
the  right  to  decide  whether  or  not  it  had  that  right?  If  not, 
where  does  this  court  get  jurisdiction  to  decide  that  the  lower 
court  decided  it  erroneously?  How  does  this  court  acquire  a 
greater  jurisdiction  to  decide  that  question  than  the  court  below 
possessed? 

Take  another  view  of  the  action  of  the  court  below.  Was 
there  any  question  presented  in  the  case  which  the  court  had 
not  the  right  to  decide?  Suppose,  for  example,  the  court  below 
had  decided  the  question  the  other  way — had  decided  that  the 
Federationist  could  not  be  enjoined  from  circulation,  and  that 
question  had  come  up  again  in  a collateral  way  between  the 
same  parties,  and  the  Federation  of  Labor  had  said,  “Here 
is  an  adjudication;  this  is  res  judicata.  This  very  question  was 
raised  in  the  Bucks  Stove  & Range  Company  vs.  the  Federation 
of  Labor  in  the  Supreme  Court  of  the  District  of  Columbia, 
and  the  court  decided  against  you.”  Would  this  court  have 
heard  the  Stove  and  Range  Company  in  saying,  “This  is  not 
res  judicata,  the  court  had  no  jurisdiction,  the  court  had  no 
power  to  pass  upon  that  question  at  all”  ? Could  this  court  have 
held  that  the  court  below  had  no  power  to  hear  and  determine 
that  question  either  way,  right  or  wrong?  Unless  the  court 
could  so  hold,  then  the  fact  that  the  decision  was  against  the 
alleged  constitutional  right,  and  this  court  has  since  held  that 
it  should  have  been  in  favor  of  the  constitutional  right,  does 
not  present  a question  of  jurisdiction  at  all.  It  is  the  question 
of  an  erroneous  decision  of  a claim  of  constitutional  right.  I 
was  coming  to  that  later,  but  the  point  has  been  decided,  even 
with  respect  to  a constitutional  question.  Thus,  where  one 
claimed  an  injunction  against  the  sale  of  oleomargarine  under 
a law  prohibiting  its  sale  and  the  court  below  granted  the  injunc- 
tion, there  being  no  claim  that  the  oleomargarine  was  sold  under 
a false  or  a fictitious  name,  but  that  the  law  was  against  the 


sale  of  it  at  all.  The  constitutional  objection  was  raised  that 
such  a prohibition  was  beyond  the  power  of  the  legislature,  that 
a man  has  a right  to  sell  his  product;  but  the  court  said  the 
question  was  whether  the  court  below  had  the  right  to  decide 
whether  there  was  a violation  of  a constitutional  right.  Did 
the  court  have  jurisdiction  to  hear  and  determine  that  question? 
If  it  did  have  the  right  to  hear  and  determine  it,  it  had  jurisdic- 
tion, and,  even  though  it  might  have  decided  the  constitutional 
question  erroneously,  that  was  error,  and  not  a want  of  juris- 
diction. 

Now,  coming  to  the  assignments  of  error,  most  of  which  I 
shall  pass  over  very  rapidly  because  they  are  treated  rather 
fully  in  the  brief,  and  because  under  all  of  them  but  two  ques- 
tions are  properly  raised  as  we  see  it,  the  Supreme  Court  of 
the  United  States  in  the  decisions  which  I cited  have  conclusively 
established  the  principle  that  contempt  proceedings  are  common 
law  proceedings,  that  they  are  judgments  in  criminal  cases,  and 
that  the  court  above  can  not  review  the  facts,  even  if  it  had  a 
record  which  would  present  them  for  review  otherwise,  and  so 
I think  it  would  be  a waste  of  time  to  spend  very  much  time 
over  the  questions  of  fact  attempted  to  be  raised. 

The  first  assignment  of  error,  however,  is  on  the  ground  that 
the  punishment  is  excessive,  and  we  find  in  the  opposing  brief 
a long  list  of  legislative  enactments  in  various  states  prescribing 
the  length  of  time  for  which,  in  those  states,  imprisonment  may 
be  imposed  in  cases  of  contempt.  But  what  bearing  have  they 
here?  We  have  no  such  law  here.  Those  statutes  have  no  effect 
in  the  District  of  Columbia,  nor  is  there  any  instance  cited  which 
we  have  been  able  to  find,  in  which  the  appellate  court  has  held 
that  it  had  anything  to  do  with  the  severity  of  the  punishment 
for  contempt,  except  a case  in  North  Carolina  and  a case  in 
Illinois.  In  the  North  Carolina  case  the  statute  provided  that 
the  imprisonment  for  contempt  should  not  exceed  thirty  days, 
the  court  imposed  sixty  days,  the  statute  provided  that  the  fine 
should  not  exceed  $250,  the  court  imposed  $2,000. 

Mr.  Justice  Robb:  It  is  your  contention  that  the  language 
of  the  code  is  not  susceptible  of  a construction  that  would 
enable  this  court  to  modify  the  penalties  imposed  upon  these 
defendants  ? 

Mr.  Darlington : Yes,  sir.  I presume  your  Honor  has  in  mind 
the  provision  of  the  code  which  says  that  any  final  order,  judg- 
ment or  decree  may  be  reviewed  by  appeal. 

Mr.  Justice  Robb:  Section  226? 

Mr.  Darlington : Yes. 

Mr.  Justice  Robb:  It  provides  that  the  Court  of  Appeals  shall 
review  such  order,  judgment  or  decree,  and  confirm,  reverse  or 
modify  the  same  as  shall  be  just. 

78 


Mr.  Darlington : Yes.  Now,  your  Honors  have  had  that 
matter  before  you  in  the  case  of  Raymond  vs.  The  United  States. 
That  was  what  the  Supreme  Court  of  the  United  States  says 
this  is,  a judgment  in  a criminal  case.  A man  had  been  convicted 
of  libel  and  had  been  sentenced  to  five  years  at  hard  labor,  and 
among  the  assignments  of  error  was  that  this  was  an  excessive 
and  cruel  punishment,  the  same  contention  that  we  have  here. 
Notwithstanding  the  power  of  this  court  to  revise  or  modify 
final  judgments  or  decrees,  this  court  held  that  it  had  no  power 
to  revise  the  sentence  imposed,  that  that  was  a question  for  the 
court  below.  Your  Honors  will  find  that  case  in  25  Appeals, 
D.  C.,  561,  in  which  the  court  said: 

“Not  so  much  the  extent  as  the  nature  of  the  punishment  it  is 
that  makes  it  cruel  and  unusual.” 

To  illustrate,  suppose  a man  is  tried  for  murder  in  the  court 
below,  and  it  is  one  of  those  cases  of  murder  in  which  there 
may  be  either  capital  punishment  or  imprisonment  for  life.  The 
court  below  sentences  to  death.  Would  it  be  contended  that  this 
court  had  power  to  modify  that  sentence,  to  reduce  it  to  impris- 
onment for  life  under  that  provision?  Such  a claim  has  never 
been  made,  so  far  as  I know,  except  in  this  case,  and  the  case  is 
in  all  respects  governed  by  Raymond  vs.  The  United  States, 
unless  this  court  shall  find  that  I am  in  error  in  the  proposition 
submitted  in  these  decisions  of  the  Supreme  Court  of  the  United 
States  that  the  judgments  in  these  contempt  proceedings  are 
judgments  in  criminal  proceedings,  just  as  completely  as  if  they 
had  been  found  on  indictment.  Nor  is  that  new  doctrine  else- 
where. In  Rogers  Manufacturing  Company  vs.  Rogers,  38 
Conn.  121,  the  court  says: 

“We  think  the  amount  of  the  fine  and  duration  of  imprison- 
ment are  within  the  sole  discretion  of  the  Superior  Court,  and 
no  court  of  review  has  any  control  over  the  matter.” 

In  re  Consolidated  Grainery  Company,  80  Vt.  63 : 

“The  power  to  punish  for  contempt  is  a discretionary  power, 
and  must  be  freely  exercised,  and,  when  so  exercised  in  a case 
within  the  discretion  of  the  court,  no  review  can  be  had.” 

The  Supreme  Court  of  the  United  States  in  re  Debs : 

“This  principle,  that  every  court,  at  least  of  the  superior  kind, 
in  which  great  confidence  is  placed,  must  be  the  sole  judge  of  last 
resort  of  contempts  arising  therein,  is  more  specifically  defined 
and  more  emphatically  enforced  in  the  two  subsequent  cases  of 
the  Queen  vs.  Patty  et.  ah,  and  King  vs.  Crosby.” 

In  re  Childs,  22  Wall,  168: 

“The  exercise  of  this  power,”  that  is,  the  power  of  courts  to 
punish  by  fine  and  imprisonment  for  contempts  of  their  author- 
ity,' “has  a twofold  aspect,  namely,  first  a proper  punishment 
of  the  guilty  party  for  his  disrespect  to  the  court  or  its  order. 


79 


and,  secondly,  to  compel  his  performance  of  some  act  or  duty 
required  of  him  by  the  court  which  he  has  refused  to  perform. 
In  the  former  case,  the  court  must  judge  for  itself  and  measure 
the  extent  of  the  punishment  with  respect  to  the  gravity  of  the 
offense.  In  the  latter  case  the  party  refusing  to  obey  should 
be  fined  and  imprisoned  until  he  performs  the  act  required  of 
him,  or  shows  that  it  is  not  in  his  power  to  do  so.” 

In  the  Raymond  case  the  court  held  that,  although  it  had  no 
power  to  modify  the  judgment  on  the  ground  of  its  severity  or 
cruelty,  yet  the  court  had  erred  as  to  the  verdict  in  receiving 
certain  evidence  in  regard  to  the  past  history  of  the  appellant, 
and  therefore  they  set  aside  the  sentence,  not  disturbing  the 
verdict,  and  sent  the  case  back  for  resentence. 

The  Chief  Justice:  The  Court  withdrew  that  decision. 

Mr.  Darlington : I was  not  aware  of  that  fact. 

The  Chief  Justice:  Yes. 

Mr.  Darlington:  Now,  the  second  assignment  of  error  has 
already  been  largely  discussed.  It  is  that  the  court  below  erred 
with  respect  to  finding  that  Mr.  Gompers  rushed  the  publication 
and  circulation  of  the  Federationist  of  January,  1908;  or,  perhaps 
not,  so  much  in  finding  that  he  did  it,  since  he  declares  he  did  it 
for  the  express  purpose  of  anticipating  the  effects  of  the  injunc- 
tion and  because  he  was  not  willing  that  the  court  or  anybody 
else  should  interfere  with  the  appearance  of  complainant’s  name 
in  the  “We  Don’t  Patronize”  list  in  that  issue  of  the  publication. 
Was  that  contempt?  The  final  court  did  not  so  find.  It  is 
only  by  the  most  labored  process  of  reasoning,  as  I think  your 
Honors  will  agree  when  you  read  the  brief  on  the  other  side,  that 
that  particular  act  plays  any  part  at  all  in  the  judgment.  It  is 
referred  to  in  the  opinion  in  giving  a history  of  the  case,  but  the 
judgment  of  the  court  in  that  connection  is  for  the  issuance  of 
those  publications  after  the  decree  operated,  the  testimony  show- 
ing that  wjthin  a month  after  the  bond  was  filed  a hundred  copies 
were  issued,  and  that  they  continued  afterward. 

But  suppose  the  case  rested  there;  suppose  we  had  simply  the 
case  of  a party,  knowing  that  an  injunction  has  been  granted, 
that  there  must  be  a bond,  and  that  there  must  be  a little  interval 
of  time  before  his  opponent  can  give  that  bond,  and  he  hurries 
to  do  the  thing  enjoined  before  the  bond  can  be  given,  in  order 
to  defeat  the  effect  of  the  court’s  decision.  Is  that  not  con- 
tempt? Our  friends  cite  no  authority.  This  is  not  a new 
question.  It  was  threshed  out  before  the  court  below  at  con- 
siderable length.  They  produced  no  authority  whatever,  they 
produce  none  now,  that  such  conduct  is  not  contempt.  We,  on 
the  other  hand,  have  cited  a number  of  authorities,  going  back 
as  far  as  the  time  of  Lord  Hardwick,  that  this  is  contempt.  For 
example,  in  Jarvis  vs.  Duncan,  18  Vesey,  Lord  Eldon  said: 


80 


“A  party  cannot  be  committed  for  a breach  of  an  injunction, 
that  express  feature  of  contempt,  unless  there  is  an  injunction. 
On  the  other  hand,  if  he  was  present  when  the  order  was  made 
the  court  will  not  permit  him  to  elude  its  justice  by  doing  that 
before  the  injunction  is  sealed  which,  if  it  were  actually  sealed, 
would  be  contempt.” 

The  argument  of  our  friends  is  that  there  was  no  injunction 
until  the  bond  was  given.  Lord  Eldon  says  there  can  be  no 
contempt  for  breach  of  an  injunction  unless  there  is  an  injunc- 
tion; but,  on  the  other  hand,  if  the  defendant  was  present  when 
the  order  was  made,  the  court  will  not  permit  him  to  do  that 
whichj  if  it  were  actually  sealed,  would  be  contempt. 

Now,  as  pointed  out  by  Mr.  Beck  in  the  argument  below,  at 
that  time  in  the  history  of  jurisprudence  it  was  not  the  allow- 
ance of  an  injunction  by  the  chancellor  which  gave  to  it  its  effect, 
but  the  putting  of  the  King’s  seal  on  the  paper  was  the  act  which 
made  it  operative,  just  as  with  us  the  giving  of  the  bond  makes 
it  operative.  In  this  case  the  offending  party  had  heard  the 
decision  of  the  court  that  the  injunction  should  be  allowed,  and 
thereupon,  before  the  seal  had  been  put  to  the  paper,  in  fact, 
before  the  decree  had  been  drawn  up  so  that  the  seal  could  be 
put  to  it,  and  therefore  at  a time  when  in  fact  there  was  no  order 
existing,  he  went  out  and  did  the  act  against  which  the  injunctions 
had  been  allowed,  and  the  court,  stating  in  terms  that  there  can- 
not be  any  contempt  of  an  injunction  before  there  is  an  injunction, 
declares  that,  if  the  party  was  present  when  the  order  was 
allowed,  he  cannot  elude  justice  by  doing  that  before  it  was 
sealed  which,  if  it  were  sealed,  would  be  contempt. 

So  again  in  James  vs.  Downs,  18  Vesey,  522,  the  defendant 
had  done  the  thing  after  the  order  had  been  pronounced  but 
before  the  seal  had  been  attached ; the  chancellor  held  that  this 
was  anticipatory  contempt  and  punished  it  accordingly. 

In  the  still  earlier  case  of  Skipp  vs.  Harwood,  reported  in  3 
Atkins,  Lord  Hardwick  said : 

“Where  a person  attends  the  action  to  which  he  is  a defendant 
the  whole  tirhe  of  the  hearing,  and  had  notice  of  the  decree  by 
being  present  when  it  was  pronounced  in  court,  if  he  does  any 
act  that  is  in  contravention  of  the  decree,  he  is  guilty  of  contempt 
and  punishable  for  it,  notwithstanding  that  the  decretal  order 
is  not  drawn  up.” 

If  the  court  has  announced  its  intention  of  granting  an  injunc- 
tion, and  the  party  goes  out  and  does  the  act  before  the  decree  is 
drawn  up,  he  is  guilty  of  anticipatory  contempt.  And  this  is  the 
unbroken  line  of  the  decisions  ever  since.  In  Endicott  vs. 
Mathis,  9 N.  J.  Eq.  1 14,  the  court  said : 

“With  the  view  of  maintaining  the  authority  of  the  court,  and 
of  giving  vigor  to  its  jurisdiction,  courts  of  chancery  have  de- 


81 


cided  that  a party  is  in  contempt  who  knows  that  an  injunction 
is  issued  or  is  about  to  issue  against  him,  but  commits  the  act 
before  the  injunction  has  been  formally  issued  and  served  upon 
him,”  citing  Hull  vs.  Thomas,  3 Edw.  Chancery  Rep.  236. 

This  is  fiot  the  case  of  a man  doing  what  he  would  naturally 
do  up  to  the  time  the  bond  is  filed.  If  these  parties  had  stood 
by  until  December  25,  and  then  had  normally  issued  their  paper, 
on  its  proper  day  of  issue,  it  might  be  different;  but  here  is  a 
case  where  they  avowedly  rushed  it  out,  hurried  the  time,  for 
the  express,  admitted  purpose  of  outwitting  the  court  and  nullify- 
ing its  action.  I submit  if  the  court  had  based  its  judgment  on 
that  act  alone,  under  the  authorities,  it  was  contempt.  Your 
Honors  are  asked  to  say  that  the  Court  below  erred  in  following 
all  the  decisions,  for  more  than  one  hundred  years,  and  in  not 
following  the  claims  of  counsel,  unsupported  by  any  authority. 

The  third  assignment  of  error  is  that  the  court  erred  in  paying 
any  attention  to  the  November  26  letter.  In  November,  1907, 
the  case  had  been  argued  and  submitted  to  the  court,  and  was 
under  consideration.  The  decision  was  not  announced  until 
December  18.  In  November,  1907,  these  defendants  issued  a 
circular  letter  advising  members  and  friends  of  organized  labor 
that  the  case  had  been  argued,  that  the  decision  would  follow, 
but,  no  matter  what  the  decision  might  be,  it  could  not  alter 
the  case,  that  no  injunction  could  preclude  them  from  continuing 
the  boycott  against  the  complainant. 

I say  the  court  does  not  base  its  action  at  all  upon  that  letter, 
but  in  giving  a history  of  the  case  it  mentions  it,  and  that  is  said 
to  be  error.  If  so,  this  court  has  also  been  guilty  of  error,  be- 
cause in  its  statement  of  the  case  it  mentions  that  letter  among 
other  things  as  a part  of  the  history  of  the  case,  and  it  goes 
further  than  the  court  below.  It  mentions  it  as  evidence  of  the 
fact  that  the  boycott  in  this  case  was  the  result  of  the  acts  of 
these  defendants. 

The  fourth  assignment  of  error  is  the  alleged  absence  of  any 
connection  between  the  speeches  and  communications  of  the  ap- 
pellants and  the  violation  of  the  injunction.  That  is,  that  the 
court  erred  in  finding  that  the  various  speeches,  communications, 
etc.,  made  and  published  by  the  defendants  before  the  injunction 
became  effective,  had  any  connection  with  the  violation  of  the 
injunctions.  In  other  words,  that  the  court  considered  those 
speeches  and  communications  of  the  appellants  before  the  in- 
junction was  issued,  in  its  opinion.  The  judgment  does  not  find 
them  guilty  of  any  speeches  or  communications  prior  to  the 
issuance  of  the  injunction,  or  the  giving  of  the  bond;  but  in  its 
narration,  its  statement  of  the  case,  it  mentions  these  various 
speeches  in  which  these  parties  had  expressly  declared  that  they 
would  not  obey  the  injunction  if  it  were  granted,  and  the  narra- 
tion of  these  things  in  the  opinion  is  assigned  as  error. 


82 


Was  it  error?  Suppose  A is  on  trial  for  the  murder  of  B. 
He  kills  B under  certain  circumstances.  Is  it  error  to  show  that 
for  ten  years  he  has  been  saying  that  if  B ever  gave  him  the 
provocation  which  he  ultimately  gave,  he  intended  to  kill  him? 
Would  that  be  error?  Is  it  not  competent  upon  the  question  of 
animus?  This  court  was  of  that  opinion.  At  page  159  of  the 
Law  Reporter  of  the  present  year  this  court  says: 

“It  is  also  highly  significant  that,  throughout  the  country,  the 
notice  to  dealers  that  they  must  stop  handling  the  complainant’s 
product  was  not  the  sporadic  and  unauthorized  act  of  the  individ- 
ual unions,  but,  on  the  contrary,  the  act  of  accredited  leaders. 
From  whom  did  they  derive  their  inspiration?  Was  it  a mere 
coincidence  that  they  acted  in  such  perfect  harmony  to  the  same 
end?  We  think  not.  In  the  editorial  to  which  allusion  has  been 
made,  and  which  was  brought  to  the  attention  of  and  endorsed 
by  the  Federation  in  convention  assembled,  Mr.  Gompers  con- 
tended for  the  right  to  do,  and  advised  the  doing,  of  exactly 
what  was  done  in  this  case.  The  bill  of  complaint  was  filed 
August  19,  1907.  The  defendants  were  therein  notified  of  the 
exact  nature  of  the  boycott  that  was  then  being  prosecuted  against 
the  complainant;  but,  notwithstanding  the  knowledge  thus  ob- 
tained, we  find  the  Executive  Council  of  the  Federation  on 
November  26,  1907,  reaffirming,  without  qualification  and  in  an 
official  statement,  as  above  stated,  what  had  been  done.  In  view 
of  all  this,  we  think  there  is  no  room  for  doubt  that  this  com- 
bination or  boycott  which  had  its  inception  in  St.  Louis,  was 
inaugurated  in  pursuance  of  a settled  policy  of  the  American 
Federation  of  Labor,  and  that,  when  the  Federation  in  due  course 
endorsed  and  approved  the  same,  it  acted  with  full  knowledge 
of  not  only  what  had  already  occurred,  but  of  what  would  be 
likely  to  follow.  If,  therefore,  anyone  is  responsible  for  what 
happened,  these  defendants  certainly  are.” 

The  words,  “We  find  the  executive  council  of  the  Federation 
on  November  26,  1907,  reaffirming,  without  qualification  and  in 
an  official  statement  as  above  stated,”  refer  to  the  letter  of  that 
date,  which,  it  is  now  said  it  was  error  for  the  court  below  to 
mention  in  its  opinion.  In  other  words,  this  court  agrees  with 
the  court  below  that  these  proceedings,  speeches,  acts  did  occasion 
these  non-sporadic,  simultaneous  acts  of  boycotting  all  over  the 
country.  Yet  our  friends  assign  that  as  error. 

The  Chief  Justice:  What  was  the  date  of  the  temporary 
injunction? 

Mr.  Darlington:  December  18,  1907.  I will  pass  briefly  over, 
without  dwelling  upon  it,  the  fifth  assignment  of  error,  which  is 
of  very  much  the  same  character,  that  the  court  erred  in  con- 
sidering prior  declarations  of  the  appellant.  To  this  there  are- 
three  answers.  In  the  first  place,  the  judgment  finds  no  prior 
intent  to  disobey.  The  opinion  discusses  it,  but  the  facts  found 


83 


and  acted  upon  were  all  subsequent.  In  the  second  place,  the 
punishment  inflicted  was  not  for  prior  intent  to  disobey,  but  for 
acts  subsequent  to  the  injunction.  In  the  third  place,  that  the 
appellants  did  actually  disobey,  and  intended  to  do  so,  was 
neither  denied  or  disputed  by  any  of  them,  at  any  stage  of  the 
litigation. 

On  that  subject  let  me  show  to  the  court,  at  page  8 of  the 
record : 

“The  original  bill  in  this  cause  having  been  filed  on  to  wit 
the  19th  day  of  August,  A.  D.,  1907,  and  the  process  of  sub- 
poena having  been  served  upon  the  said  Samuel  Gompers  as  a 
defendant  named  in  the  bill,  on,  to  wit,  the  20th  day  of  August, 
A.  D.,  1907,  thereafter,  to  wit  on  the  same  day,  or  the  day  fol- 
lowing, the  said  Samuel  Gompers  not  only  stated  his  intention  of 
not  complying  with  any  order  which  might  be  passed  by  the 
court,  pursuant  to  the  prayers  of  the  said  bill,  but  publicly  stated 
such  intention  in  an  interview  with  the  representatives  of  three 
prominent  newspapers,  and  the  said  interview  was  extensively 
published  throughout  the  country,  including  the  city  of  Wash- 
ington and  the  District  of  Columbia.  In  the  course  of  said 
interview  so  published  the  said  Samuel  Gompers  said : ‘When 
it  comes  to  a choice  between  surrendering  my  rights  as  a free 
American  citizen  or  violating  the  injunction  of  a court,  I do 
not  hesitate  to  say  that  I shall  exercise  my  rights,  as  between  the 
two.’  This  statement  of  the  said  Samuel  Gompers,  at  or  about 
the  time  of  the  filing  of  the  bill  in  this  cause,  was  made  in  ac- 
cordance with  and  pursuant  to  the  suggestion  and  purpose  out- 
lined by  him  at  the  Nashville  convention  before  mentioned,  ten 
years  earlier.” 

That  was  an  announcement  made  by  him  ten  years  before, 
referred  to  in  the  opinion  of  this  court,  that  if  injunctions  were 
granted  they  were  not  to  be  obeyed.  Now,  his  answer  to  this 
allegation  of  the  petition  will  be  found  on  page  24.  This 
charges  two  things : first,  that  he  declared  he  would  not  obey 
the  injunction  if  passed  and,  secondly,  that  he  did  so  in  accord- 
ance with  that  proclamation. 

“10.  Answering  the  tenth  paragraph  of  the  petition,  this 
defendant  says  that  he  admits  the  correctness  of  the  quotation 
there  made,  and  does  not  surrender  his  rights  as  a free  Ameri- 
can citizen,  and  will  not  assume  that  the  courts  will  hold  any 
line  of  conduct  illegal  which  he  pursues  within  his  rights  as 
such  citizen;  that  at  the  time  of  such  interview  he  did  not  have 
in  mind  in  any  way  the  words  attributed  to  him  as  having  been 
used  in  the  Nashville  convention.” 

That  is,  he  did  say  he  would  not  obey  any  injunction  that 
might  be  granted.  He  does  not  deny  that  it  was  pursuant  to 
the  purpose  outlined  at  the  Nashville  convention,  but  does  deny 
that  he  had  that  in  mind  at  the  time  he  made  the  declaration. 


84 


In  this  connection  I will  ask  the  court,  in  order  to  save  time, 
to  please  read  when  you  come  to  consider  the  case  the  22d,  23d, 
24th  and  25th  paragraphs  of  the  petition,  and  the  reply  of  Mr. 
Gompers  to  them  in  his  answer  in  this  case,  in  each  of  which 
he  admits  them.  In  pursuance  of  a like  plan  or  like  purpose 
to  defy  the  injunction  he  said: 

“I  want  to  assure  you  on  my  word  of  honor  that  so  long  as  I 
live  I will  never  buy  a Loewe  hat  or  a Bucks  stove  or  range  until 
these  gentlemen  come  into  agreement  with  organized  labor 
and  grant  us  conditions  of  fairness.  Then  they  will  get  support 
and  help.  Until  then  you  may  call  it  by  any  other  name — 
boycott  or  no  boycott — but  I won’t  buy  your  hats  anyhow.” 

The  answer  admits  that  he  used  that  language  and  it  makes 
no  denial  of  the  fact  that  he  used  it  for  the  purpose  charged. 

Mr.  Justice  Van  Orsdel : Do  these  defendants  answer  sep- 
arately or  jointly? 

Mr.  Darlington:  Separately.  Now,  let  me  refer  to  the 
argument  of  the  learned  gentleman  yesterday  who  asked  the 
court  to  notice  that  the  final  sentence,  beginning  at  the  bottom 
of  page  17  of  the  record  was  a mere  editorial  “squib,”  which 
in  no  manner  referred  to  the  injunction,  and  therefore  could 
not  constitute  contempt.  Let  me  ask  the  court  to  read  that 
squib  in  connection  with  the  whole  quotation.  It  is  not  a segre- 
gated thing.  The  quotation  begins  with  the  preceding  paragraph. 

The  whole  quotation  is  this: 

“The  temporary  injunction  issued  by  Justice  Gould  of  the 
Court  of  Equity  of  the  District  of  Columbia,  in  the  (Van 
Cleave)  Bucks  Stove  & Range  Company  of  St.  Louis  vs.  The 
American  Federation  of  Labor,  its  officers  and  all  others,  has 
been  made  permanent.  The  case  will  now  be  carried  to  the 
Court  of  Appeals  of  the  District  of  Columbia. 

“It  should  be  borne  in  mind  that  there  is  no  law,  aye,  not 
even  a court  decision,  compelling  union  men  or  their  friends 
of  labor  to  buy  a Bucks  stove  or  range.  No,  not  even  to  buy  a 
Loewe  hat.” 

How  can  it  be  said  that  the  latter  sentence  is  to  be  separated 
from  the  immediately  preceding  sentence,  and  by  that  process  be 
held  to  have  had  no  reference  to  the  injunction? 

I think  in  the  economy  of  time  I must  pass  by  the  sixth 
and  seventh  assignments  of  error,  except  to  call  the  attention 
of  the  court  to  a little  law  in  connection  with  the  seventh. 

The  seventh  assignment  of  error  is  that  the  court  erred  in 
finding  that  defendants  violated  the  injunction  by  the  issuance  of 
the  Urgent  Appeal  of  January  24th  and  the  editorial  in  connec- 
tion therewith,  “the  same  having  been  the  proper  and  necessary 
steps  in  their  own  defense  and  not  in  furtherance  of  any  boy- 
cott.” 


85 


In  so  far  as  the  question  of  fact  is  concerned  that  was  dis- 
cussed on  yesterday.  The  injunction  was  against  doing  the 
things  specified.  It  contained  no  exceptions,  allowing  them  to 
be  done  because  the  parties  preferred  to  ask  voluntary  contri- 
butions rather  than  to  assess,  as  they  might  do.  But  upon  the 
question  of  law  involved,  this  court  has  held  in  its  opinion  that 
the  injunction  was  too  broad  in  so  far  as  the  Urgent  Appeal 
is  concerned.  At  least,  I believe  that  is  the  decision.  Did  that 
justify  disobedience  to  it?  Can  that  be  considered  upon  the  ques- 
tion of  contempt? 

On  that  subject  the  Supreme  Court  of  New  Jersey  say  in 
Richards  , vs.  West,  2 N.  J.  Eq.  456: 

“While  the  writ  of  injunction  remains  in  force  it  needs  must 
be  implicity  obeyed.  The  party  is  not  at  liberty  to  speculate 
on  the  intention  of  the  court.” 

The  next  citation  in  the  brief  is  a typographical  error : 
Ketcham  vs.  Edwards  should  be  153  N.  Y.  instead  of  153  N.  J. 

The  Chief  Justice:  On  what  page  of  your  brief  is  that? 

Mr.  Darlington:  Page  23.  I only  read  a few  sentences 
from  these  decisions  to  show  the  trend  of  them.  This  bears  on 
the  main  question  in  this  case,  namely,  what  is  jurisdiction? 
Does  an  erroneous  decision  of  a constitutional  question  defeat 
jurisdiction?  If  the  question  is  before  the  court  for  decision, 
if  the  court  has  the  right  to  decide  the  question  at  all,  either 
one  way  or  the  other,  does  a decision  the  wrong  way  withdraw 
jurisdiction? 

“It  is,  of  course,  not  subject  to  debate  that  the  order  of  a 
court  having  jurisdiction  must  be  implicity  obeyed,  however 
erroneous  it  may  be,  and  that  it  is  no  answer  for  one  called  upon 
to  answer  for  a disobedience,  that  the  order  or  judgment  was 
broader  than  the  facts  warranted,  or  gave  relief  beyond  what 
was  demanded,  or  what  the  court,  upon  the  facts,  was  justified 
in  awarding.  The  interest  in  maintaining  respect  for  the  action 
of  the  courts,  and  of  orderly  jurisprudence,  forbids  that  liti- 
gants should  be  permitted,  under  plea  of  hardship  or  injustice, 
real  or  pretended,  to  nullify  or  set  at  naught  orders  or  decrees, 
however  improvidently  made,  even  if  it  may  seem  certain  that 
the  court  acted  in  granting  them  under  misapprehension  or 
mistake.” 

The  next  case  from  which  I read  is  Franklin  Union  No.  4 vs. 
The  People,  220  111.  368 : 

“When  a court  has  before  it,  as  it  is  conceded  the  court  had 
in  this  case,  a party  complainant  asking  that  an  injunction  issue, 
and  a party  against  whom  it  is  asked  to  issue,  upon  a bill 
stating  a case  falling  within  its  general  equitable  jurisdiction,  the 
court  has  jurisdiction  to  decide  whether  an  injunction  should 


86 


issue  or  not,  and  the  character  of  the  injunction  which  should 
issue,  and  should  the  court  err  in  ordering  an  injunction  to  issue 
when  one  ought  not  to  issue,  or  should  it  order  an  injunction 
broader  in  its  term  than  the  averments  of  the  bill  would  justify, 
its  action,  on  appeal  or  writ  of  error  would  be  set  aside ; but 
upon  an  attachment  for  contempt,  which  is  in  its  nature  col- 
lateral, for  violation  of  the  injunction,  a party  who  has  violated 
the  injunction  will  not  be  heard  to  say  the  injunction  ought 
not  to  have  issued,  or  was  broader  in  its  terms  than  the  bill 
justified,  as  an  excuse  for  his  action,  as  the  error  of  the  court 
in  granting  an  injunction,  or  in  granting  one  broader  than  the 
averments  in  the  bill  will  justify,  does  not  deprive  it  of  juris- 
diction to  act,  and  its  order  directing  the  injunction  to  issue 
is  valid  and  binding  until  modified  or  vacated  or  set  aside  upon 
appeal  or  writ  of  error.” 

I will  pass  over  also  the  eighth  assignment  of  error  referring 
simply  to  our  brief  on  the  subject. 

We  come  now  to  one  of  the  principal  specifications  against 
the  appellant  Mitchell.  The  Court  was  told  on  yesterday  with 
respect  to  the  publication  which  occurred  in  the  Mine  Workers’ 
Journal,  of  which  organization  Mitchell  is  president,  that  he 
was  ill  for  months  and  saw  nothing  of  those  resolutions  and 
knew  nothing  about  them.  Of  course  that  was  stated  in  good 
faith  and  is  simply  an  'error  in  recollection  of  the  testimony. 
The  18th  paragraph  of  the  petition  alleges  that  Mitchell  pub- 
lished in  the  journal  of  the  organization  a certain  article  of  Jan- 
uary 9,  1909.  At  page  306  of  the  record  Mr.  Mitchell  says 
that  he  usually  receives  this  journal  and  that  he  usually  reads  it, 
but  on  page  308  he  says  that  when  the  issue  of  January  9 came 
out  he  was  absent  from  home,  ill,  and  does  not  recall  seeing 
the  issue  of  January  9,  the  one  which  contained  the  editorial 
to  which  exception  was  taken.  That  is  the  only  issue  of  the 
journal  he  claims  he  did  not  see  or  did  not  read  and  the  only 
issue  of  the  journal  in  connection  with  which  he  mentions  his 
illness,  and  the  court  did  not  find  him  guilty  of  that  act.  It 
accepted  his  explanation  of  it.  It  does  not  find  Mitchell  at  all 
guilty  of  the  allegation  contained  in  the  18th  paragraph  of  the 
bill,  which  is  the  one  dealing  with  that  issue ; and  we  come  to 
another  matter  on  which  it  does  find  him  guilty.  That  is,  that, 
notwithstanding  the  terms  of  the  injunction,  which  I need  not 
repeat  as  it  is  in  the  minds  of  the  court,  he  presided  over  a 
convention  of  these  mine  workers  on  the  25th  day  of  January, 
1908;  that  he  entertained  a resolution  offered  by  one  Stroud, 
which  recited  that  the  Bucks  Stove  & Range  Company  had  gone 
into  court  to  enjoin  the  Federation  from  putting  its  name  on 
the  unfair  list;  that  it  was  thereby  striking  at  one  of  the  prin- 
cipal weapons  of  the  Federation  of  Labor,  its  right  to  boycott, 
and  thereupon  resolved  that  any  member  of  the  United  Mine 
Workers’  organization,  300,000  strong,  who  should  buy  any  pro- 
duct of  the  Bucks  Stove  & Range  Company  should  be  fined  five 
dollars  and  should  be  expelled  if  he  did  not  pay  the  fine. 

87 


The  petition  alleged  that  Mitchell  entertained  that  resolu- 
tion, that  he  put  it  to  a vote,  that  he  declared  it  adopted,  and 
participated  in  its  passage  to  that  extent. 

Mr.  Justice  Van  Orsdel : Let  me  ask  a question  there.  This 
is,  you  claim,  a criminal  proceeding? 

Mr.  Darlington : Yes. 

Mr.  Justice  Van  Orsdel : The  petition  then  becomes  some- 
thing like  an  indictment  in  an  ordinary  criminal  proceeding.  On 
that  theory  Mr.  Mitchell  could  sit  silent.  It  was  encumbent  on 
you  to  prove  all  the  allegations  made  by  you. 

Mr.  Darlington : Yes. 

Mr.  Justice  Van  Orsdel:  And  if  you  failed  to  prove  those 
allegations,  under  the  ordinary  rule  of  criminal  procedure  there 
should  be  a verdict  of  not  guilty. 

Mr.  Darlington : Yes.  If  there  is  no  ■ evidence,  then  the 
reviewing  court  could  say  there  was  no  evidence.  Of  course 
if  there  was  a finding  of  fact  below,  upon  legally  sufficient  evi- 
dence, this  court  can  not  set  that  aside.  Now,  your  Honor  has 
not  heard  the  evidence  on  that  point.  Your  Honor  has  only 
heard  what  our  friends  have  said. 

Mr.  Justice  Van  Orsdel:  Yes;  I gathered  from  the  argu- 
ment on  yesterday  that  there  was  no  evidence  here  excepting 
the  affidavit  of  Mr.  Mitchell. 

Mr.  Darlington : I was  afraid  your  Honor  had  got  that  im- 
pression. I was  going  to  show  you  how  far  from  the  fact  that 

is.  Mr.  Mitchell’s  defence  of  that  is  simply,  “I  do  not  recollect 

it. ”  It  is  not,  “If  I did  it,  I did  it  inadvertently,  did  it  without 
knowing  it  at  the  time.”  He  simply  says,  “Now,  I do  not  recollect 
it,”  and  when  he  is  cross-examined — 

Mr.  Justice  Van  Orsdel : Does  he  deny  knowledge  of  what  the 
resolution  contained? 

Mr.  Darlington : No,  he  denies  nothing  except  present  rec- 
ollection of  it,  and  I am  going  to  show  that  on  cross-examination 
he  practically  abandons  that.  I read  from  my  brief,  and  I give 
the  page  reference  at  every  point.  In  his  deposition  he  testi- 
fies that  he  takes  it  for  granted  that  the  minutes  are  correct  in 
'stating  that  he  was  in  the  chair  when  the  resolution  in  question 
was  put  and  declared  to  be  adopted ; that  he  has  no  doubt  about 
it  (Rec.  p.  300)  ; that  he  does  not  recall  anything  about  the 
introduction  or  passage  of  the  resolution;  that  he  sees  from  the 
record  that  he  was  in  the  chair,  but  he  has  no  independent  rec- 
ollection about  it  (p.  301)  ; that  no  doubt  the  resolution  was 
read  in  his  presence  and,  though  he  does  not  remember  hearing 
it,  he  has  no  doubt  that  he  did  so  (pp.  302-3).  That  is  his 
deposition.  On  the  other  hand,  Mr.  Stroud,  the  man  who 


88 


offered  the  resolution  testifies  that  Mr.  Mitchell  was  in  the  chair, 
that  the  resolution  was  read  in  a loud  voice  by  the  chairman 
of  the  committee  reporting  it,  standing  ten  feet  from  Mitchell; 
that  Mitchell  appeared  to  give  close  attention  to  everything  that 
was  going  on  in  the  convention,  and,  furthermore,  that  this 
resolution  was  an  important  one,  regarded  as  important,  that 
it  had  been  printed  and  circulated  among  the  members  before 
it  was  reported,  the  day  before,  and  a copy  put  in  the  hands  of 
every  person  present. 

Mr.  Justice  Robb:  Was  Stroud  impeached  in  any  way? 

Mr.  Darlington:  No,  our  friends  introduced  no  evidence 
at  all. 

Mr.  Justice  Robb : What  was  Stroud’s  relation  to  the  res- 
olution ? 

Mr.  Darlington : He  introduced  it. 

Mr.  Justice  Robb:  Was  he  an  officer? 

Mr.  Darlington : He  was  a delegate  to  that  convention,  and 
he  introduced  the  resolution.  Mr.  Stroud  prepared  the  reso- 
lution and  had  it  endorsed  by  his  local  organization  before  the 
convention  met,  and  that  is  his  testimony,  that  Mitchell  was  in 
the  chair,  that  the  chairman  of  the  committee  reporting  it  read 
the  resolution  in  a loud  voice,  ten  feet  away  from  Mitchell,  that 
Mitchell  appeared  to  be  giving  good  attention  to  everything  that 
transpired.  The  man  who  seconded  it  testifies  lo  the  same  ef- 
fect, and  the  stenographer  who  reported  the  convention  testified 
from  her  notes  that  Mitchell  was  in  the  chair,  and  that  he  put  the 
question  and  declared  it  adopted. 

Now,  I must  say,  even  if  this  court  could  review  the  question 
of  fact,  there  is  absolutely  no  ground  to  question  the  correctness 
of  the  findings  of  the  court  below  that  Mitchell  did  these  things. 
Still  less  can  this  court  be  asked  to  say  that  the  findings  of  the 
court  was  without  any  evidence,  or  any  legally  sufficient  evidence, 
upon  this  point.  Mr.  Beck  calls  my  attention  to  the  fact  that  this 
resolution  was  of  a kind  that  would  have  attracted  the  attention 
of  everybody  in  the  convention,  in  view  of  the  campaign  which 
had  been  made  throughout  the  entire  order  against  the  Bucks 
Stove  & Range  Company.  Now,  the  defense  of  Mr.  Mitchell  is, 
that  he  does  not  recollect  it ; not  that  he  did  not  understand  it, 
not  that  be  did  not  do  it,  not  that  he  would  not  do  it  again,  but 
simply  that  he  does  not  now  recollect  it.  And  we  have  here  a very 
curious  further  defense.  The  court  is  told  in  the  opposing  brief 
that  the  court  will  take  judicial  cognizance  of  the  fact  that  Mit- 
chell is  a man  of  law-abiding  character,  a man  who  would  not 
do  anything  in  violation  of  law.  Now,  the  very  curious  thing 
to  which  we  refer  is  that  the  witnesses  who  testify  that  Mitchell 
was  a man  of  good  character,  and  would  not  do  a thing  of  the 
kind  charged,  are  the  men  who  did  it,  the  man  who  introduced 


89 


the  resolution  and  the  man  who  seconded  it.  The  men  who  did 
the  lawless  thing  they  claim  Mitchell  would  not  have  done  are 
the  only  men  who  are  called  to  substantiate  that  view  of  his  char- 
acter. But  what  does  Mitchell  himself  say?  In  his  book,  “Or- 
ganized Labor;  Its  Problems,  Purposes  and  Ideals,”  published 
in  1903,  he  says: 

“Moreover,  when  an  injunction,  whether  temporary  or  per- 
manent, forbids  the  doing  of  a thing  which  is  lawful,  I believe  it 
is  the  duty  of  all  patriotic  and  law-abiding  citizens  to  resist,  or 
at  least  to  disregard  the  injunction.  It  is  better  that  half  the 
workingmen  of  the  country  remain  constantly  in  jail  than  that 
trial  by  jury  and  other  inalienable  and  essential  rights  of  citizens 
of  the  United  States  be  abridged,  impaired  or  nullified  by  in- 
junctions of  the  courts.”  The  Supreme  Court  of  the  United 
States  has  on  three  different  occasions  held  that  trial  for  contempt 
by  the  court  was  not  the  taking  away  of  any  right,  but  Mitchell 
says  it  is,  and  that  to  hold  otherwise  is  a violation  of  an  inalien- 
able and  essential  right  of  a citizen  of  the  United  States. 

Again,  in  December,  1906,  Mr.  Mitchell  said,  in  a public  ad- 
dress : 

“I  wish  to  say  for  myself — and  I yield  to  no  man  living  in  loy- 
alty to  this  country — that  if  a judge  were  to  enjoin  me  from 
doing  something  that  I had  a legal,  a constitutional  and  a moral 
right  to  do,  I should  violate  the  injunction.  I shall,  as  one 
American,  preserve  my  liberty  and  the  liberties  of  the  people, 
even  against  the  usurpation  of  the  Federal  judiciary,  and  in  do- 
ing this  I shall  feel  that  I am  best  serving  the  interests  of  my 
country.” 

Again,  in  the  economy  of  time,  I will  pass  over  the  10th  and 
12th  assignments  of  error.  This  leaves  only  the  11th  and  13th, 
which  raise  the  principal  question  of  law  in  this  case.  This  is 
the  question,  whether  an  order  or  decree  of  a court  which  holds 
that  a certain  act  is  not  a constitutional  right,  is  beyond  the 
jurisdiction  of  the  court  if  a higher  court  holds  that  it  is  a con- 
stitutional right;  in  other  words,  whether  a decision  against  a 
constitutional  right  of  a party,  where  that  issue  is  presented  be- 
fore the  court  in  such  shape  as  to  authorize  and  require  that 
court  to  pass  upon  it,  is  in  excess  of  its  jurisdiction  if  it  de- 
cides the  question  erroneously,  and  therefore  makes  its  decree 
void.  Does  its  jurisdiction  depend  on  how  it  decides  the  pacticu- 
lar  question,  brought  before  it  for  decision,  or  does  its  juris- 
diction depend  on  its  right  to  pass  upon  the  question,  whether 
it  does  so  correctly  or  otherwise? 

We  have  certain  concessions  of  counsel,  on  both  sides,  which 
bring  this  question  down  to  a very  small  compass.  I read  from 
page  30  of  my  brief,  quoting  from  the  brief  of  the  other  side. 
Counsel  for  appellants  agree  that  the  question  in  the  present  case, 
“arises  collaterally,  the  respondents  challenging  the  validity  of 
the  decrees  below,  when  an  attempt  is  made  to  give  them  efficacy.” 


90 


Counsel  for  the  appellee,  on  the  other  hand,  agree  that  decrees 
by  a court  without  jurisdiction,  of  either  the  parties  or  of  the 
subject  matter,  are  void,  and  can  not  be  made  the  basis  of  punish- 
ment for  contempt.  Counsel  for  the  other  side,  at  page  40  of 
their  brief,  further  agree  that  they  are  “brought,  then,  to  the  posi- 
tion that  the  decrees  below  in  respect  to  the  publication  or  ut- 
terances * * * were  in  excess  of  the  jurisdiction  of  the 

court,”  and  that  decrees  “may  be  attacked  collaterally  as  void 
when  the  court  acts  without  jurisdiction  over  the  person  or  of 
the  subject  matter,  or  is  without  jurisdiction  to  make  the  par- 
ticular order.” 

We  have,  then,  a question,  not  of  constitutional  right,  not  of 
error  or  the  want  of  error,  but  the  question  of  jurisdiction;  and 
the  only  question  presented,  therefore,  is,  was  the  court  below 
without  jurisdiction  to  grant  the  injunctions  which  the  appel- 
lants violated? 

It  is  not  denied  that  the  court  had  jurisdiction  of  the  parties. 
That  can  not  be  denied.  It  is  not  denied  that  the  court  had 
jurisdiction  of  the  subject  matter,  because  this  court  has  af- 
firmed that  it  had  a right  to  hear  and  decide  the  case.  Was  there 
any  allegation  of  the  bill  which  the  court  had  no  jurisdiction  to 
hear  and  pass  upon?  That  is  jurisdiction.  The  distinguished 
counsel  for  the  appellants  on  yesterday  undertook  to  compare 
the  case,  by  analogy,  with  the  case  of  a statute  which  is  partly 
constitutional  and  partly  not  so,  where  the  constitutional  and  the 
unconstitutional  parts  are  so  blended  that  you  cannot  separate 
them.  He  says  that  the  whole  is  void.  In  that  case  that  is  true: 
but  is  there  the  slightest  analogy  between  such  an  act  of  Con- 
gress and  the  decree  of  a court  in  a matter  in  which  it  has 
jurisdiction?  We  are  dealing  here  with  a question  which  does 
not  enter  at  all  into  legislative  action.  There  is,  there,  no  juris- 
diction, no  right  to  hear  and  determine  causes.  In  other  words, 
the  action  of  a legislative  body  must  be  either  valid  or  void.  It 
is  either  wholly  void  or  wholly  valid.  There  is  no  intermediate 
or  simply  voidable  status.  There  is  no  class  of  erroneous  enact- 
ments, valid  until  declared  void.  The  very  question  in  this  case 
is  wholly  non-existent  in  the  case  of  legislative  acts,  and,  there- 
fore, all  analogy  is  wholly  absent.  No  authority  has  been  cited 
in  the  opposing  brief,  and  we  submit  no  authority  exists,  for  the 
proposition  that,  where  a court  has  a case  before  it,  and  there 
is  in  it  a question  which  it  is  the  duty  of  the  court  to  pass  upon, 
its  jurisdiction  depends  upon  how  it  passes  upon  that  question. 
The  question  always  is,  Has  the  court  the  right  to  hear  and  de- 
cide the  question?  not  how  has  it  decided  it.  Had  the  court  the 
right  to  hear  and  determine  the  question  which  it  has  decided,  not 
has  it  determined  that  question  correctly. 

Now,  as  I have  said,  the  brief  on  the  other  side  cites  no  case 
in  which  any  court  has  ever  held  that,  where  the  court  below  had 
the  right  to  hear  and  determine  the  case,  to  decide  it  at  all,  any 


91 


decision  that  it  has  made  is  void  for  want  of  jurisdiction.  In- 
deed, that  is  an  evident  antagonism  of  terms. 

The  Chief  Justice : What  do  you  say  to  this : Take  a case 
where  the  jurisdiction  depends  upon  the  existence  of  certain 
facts.  Now,  the  courts  are  not  precluded  by  the  finding  of  the 
court  below  that  those  facts  existed.  What  gives  the  court  juris- 
diction is  the  fact,  as  for  example  in  the  case  of  Thompson  vs. 
Whitman,  where  the  court  had  to  determine  whether  a vessel 
was  seized  within  certain  waters.  It  determined  that  fact  and 
condemned  the  vessel,  but  the  court  held  that  judgment  void.  It 
inquired  into  the  fact  whether  the  court  had  erred  in  determin- 
ing where  the  vessel  was. 

Mr.  Darlington:  Did  it  hold  the  decision  void,  or  simply  re- 
verse it? 

The  Chief  Justice : As  I understand  it,  they  held  it  void,  for 
the  second  suit  was  a suit  regarding  the  title  of  the  property 
which  had  passed  in  the  condemnation.  It  was  a collateral 
attack. 

Mr.  Darlington : It  did  not  involve  the  question  of  the  duty  of 
the  parties  to  obey  the  court’s  order  at  all,  until  the  question  was  \ 
determined  ? 

The  Chief  Justice:  No. 

Mr.  Darlington:  That  is  the  question  we  have  here. 

The  Chief  Justice:  I am  talking  about  the  proposition  that 
the  court  ascertained  the  facts  which  are  necessary  to  determine 
the  jurisdiction.  The  court  did  so,  but  another  court  in  a col- 
lateral attack  on  it  inquired  into  the  question  of  the  jurisdic- 
tion. It  is  like  a divorce  case  where  the  court  in  one  state  de- 
cided it  had  jurisdiction  of  the  person,  but  courts  in  collateral 
attacks  in  another  state  inquire  into  the  question  of  whether  it 
had  jurisdiction,  and  find  the  judgment  void. 

Mr.  Darlington : Those  are  on  questions  of  fact,  and  they 
are  in  cases  where  the  court  can  determine  the  questions  of 
fact.  Those  are  cases  where  the  jurisdiction  depends  on  a ques- 
tion of  fact,  and  the  reviewing  court  has  the  power  to  review 
the  facts  upon  which  the  question  of  jurisdiction  depends.  And 
in  the  cases  your  Honor  has  in  mind  the  courts  have  perhaps 
used  the  term  “void,”  but  have  not  decided  the  question  we  have 
here,  which  is  whether  a decree  of  prohibition  or  inhibition  upon 
a party,  a personal  judgment  or  decree,  directing  a thing  to  be 
done  or  forbidding  it  to  be  done,  may  be  violated,  and  the  party 
escape  punishment  if  a reviewing  court  holds  it  to  be  void  in  the 
sense  your  Honor  mentions.  They  do  not  touch  the  question  we 
are  now  considering,  which  is  whether  so  long  as  the  decree  re- 
mains unreversed,  it  is  not  binding  on  the  party  who  is  ordered 
to  abstain. 


92 


The  Chief  Justice:  Take  the  case  of  in  re  Sawyer,  where 
the  court  exercised  jurisdiction  over  municipal  officers  who  dis- 
obeyed a writ.  It  had  jurisdiction  of  their  persons,  and  per- 
manent jurisdiction  as  a matter  of  law,  as  a court  of  equity, 
over  these  municipal  officers.  They  violated  an  injunction;  they 
were  imprisoned.  A writ  of  habeas  corpus  was  taken  out,  and 
the  Supreme  Court  discharged  them  upon  the  ground  that  the 
judgment  was  void,  because  the  court  had  no  real  jurisdiction 
over  municipal  officers  on  a matter  of  that  kind. 

Mr.  Darlington : That  is  one  of  the  cases  on  the  other  side 
which  we  point  out  has  no  bearing  here. 

Mr.  Justice  Robb:  Tl^e  court  had  no  jurisdiction  of  the 
parties  ? 

Mr.  Darlington:  The  Court  had  jurisdiction  of  the  parties  but 
not  of  the  subject  matter. 

Mr.  Justice  Robb : It  was  held  that  the  court  could  not  pass 
upon  a case  involving  municipal  officers. 

Mr.  Darlington:  That  it  was  absolutely  without  jurisdiction 
to  pass  upon  the  question  of  removing  the  incumbent  from  a 
municipal  office.  It  had  jurisdiction  of  the  parties,  but  not  of 
the  cause. 

The  Chief  Justice : What  is  the  difference  between  that  and 
a case  like  this,  where  this  court  held  that  the  court  below  had 
no  jurisdiction  to  issue  an  injunction  against  the  publication,  un- 
less that  publication  be  in  fact  for  a criminal  purpose,  making 
that  an  exception?  Now,  taking  the  decision  of  a majority  of 
the  court  in  this  case,  that  the  court  had  no  constitutional  power 
to  issue  a writ  of  injunction — 

Mr.  Darlington : Power  is  one  thing — 

The  Chief  Justice:  Yes,  the  Constitution  forbids  it,  and  there- 
fore it  has  no  power. 

Mr.  Darlington:  Does  your  Honor  construe  power  and  juris- 
diction to  be  the  same  thing? 

The  Chief  Justice : They  are  hard  to  distinguish.  I remem- 
ber distinguished  lawyers  trying  to  distinguish  between  judicial 
power  and  jurisdiction.  I must  say  the  question  is  not  clear  to 
me. 

Mr.  Darlington : Jurisdiction  is  the  right  to  hear  and  decide 
the  question.  I think  we  all  agree  on  that.  Does  this  court 
hold  that  there  is  any  claim  here  that  the  lower  court  had  no 
right  to  hear  and  pass  upon  the  questions,  or  any  of  them,  pre- 
sented by  the  bill  in  this  case? 

The  Chief  Justice : There  are  cases  in  which  the  court  had 
partial  jurisdiction — the  jurisdiction  to  do  certain  things  but  not 
to  do  others. 


93 


Mr.  Darlington : That  is  true,  but  my  inquiry  is,  was  there 
a single  thing  in  this  bill  that  the  court  had  not  the  right  to 
hear  and  determine,  one  way  or  the  other?  If  there  is  such  a 
thing,  then  the  court  had  no  jurisdiction;  but  if  it  had  the  right 
to  hear  and  determine  the  question,  whether  it  is  a question  of 
constitutional  law  or  statutory  law,  then  it  had  jurisdiction. 

The  Chief  Justice:  The  court  has  the  right  to  hear  and  deter- 
mine the  case  of  a party  charged  with  crime;  but  if  the  court 
exceeds  its  jurisdiction  in  inflicting  the  penalty,  that  judgment  is 
void,  as  the  Supreme  Court  held  in  the  habeas  corpus  case. 
There  was  a case  in  which  it  had  jurisdiction,  and  simply  erred 
in  the  construction  of  the  statute. 

Mr.  Darlington : It  had  no  jurisdiction  to  pass  a certain  sen- 
tence. That  is  one  of  the  cases  cited  on  the  other  side. 

The  Chief  Justice:  Had  the  court  in  this  case  jurisdiction  to 
enjoin  the  publication? 

Mr.  Darlington : If  your  Honor  will  pardon  me — 

The  Chief  Justice : This  court  held  that  the  court  below  had 
not,  except  for  certain  purposes. 

Mr.  Darlington : The  question  is  not  whether  the  court  had 
power  to  enjoin.  If  the  court  had  the  power  to  hear  and  decide 
that  question,  the  fact  that  it  decided  it  erroneously  raises  no 
question  of  its  jurisdiction. 

The  Chief  Justice : I do  not  see  how  you  can  make  that 
distinction.  It  had  the  power  to  hear  the  question  generally, 
but  it  had  no  power  to  order  a certain  thing  to  be  done.  It 
could  order  other  things  to  be  done  in  the  course  of  the  litigation, 
but  it  exceeded  its  power  when  it  ordered  the  parties  not  to  pub- 
lish a certain  article.  According  to  my  notion,  the  whole  publi- 
cation ought  not  to  have  been  enjoined  under  any  circumstances. 
That  is  my  construction.  Therefore,  I have  no  hesitation  in  say- 
ing that  if  the  court  enjoined  the  publication  of  an  article,  libelous 
or  whatever  it  might  be,  that  while  the  party  might  be  punished 
for  that  act,  that  the  court  had  no  jurisdiction,  by  virtue  of  the 
constitutional  prohibition,  or  no  power,  whichever  you  call  it, 
to  enjoin  the  act,  and  therefore  its  judgment  would  be  a nullity, 
as  in  the  case  of  in  re  Sawyer,  because  it  had  no  power  or  no 
jurisdiction  to  do  the  thing  which  it  undertook  to  do. 

Mr.  Darlington : Let  us  assume  that  the  court  had  been  unani- 
mous on  the  subject,  although  they  were  not. 

Mr.  Justice  Robb : They  were  not. 

Mr.  Darlington : I know  they  were  not : but,  to  get  a broad 
illustration  of  the  question  of  jurisdiction,  suppose  this  court 
had  been  unanimous  on  the  proposition  that  no  injunction  should 
have  been  issued  against  tjie  publication.  But  the  bill  had  asked 


94 


that  it  be  enjoined.  Was  it  not  within  the  jurisdiction  of  the 
court  to  hear  and  determine  that  question,  whether  the  publica- 
' tion  should  or  should  not  be  enjoined?  Does  any  member  of 
this  court  doubt  that,  under  this  bill,  it  was  the  province  and  the 
duty  of  the  court  below  to  hear  and  decide  that  question  in  one 
way  or  the  other? 

The  Chief  Justice:  Yes;  but  it  would  be  its  duty  to  decide  one 
way,  if  the  Constitution  provided  but  one  way,  and  whenever  it 
exceeded  that — 

Mr.  Justice  Robb:  Who  is  to  say? 

The  Chief  Justice : If  the  court  below  does  not  say  it  right, 
the  appellate  court  says  it.  The  Supreme  Court  of  the  United 
States  issued  a writ  of  habeas  corpus  and  discharged  a man, 
in  a criminal  case,  where  the  court  had  jurisdiction,  but  inflicted 
a penalty  which  it  had  no  authority  to  inflict,  where  it  misinter- 
preted the  statute  and  inflicted  a severer  penalty  than  the  statute 
permitted.  The  court  said  that  judgment  was  void  because  it 
was  in  excess  of  the  jurisdiction  of  the  court. 

Mr.  Darlington : We  have  now  gotten  through  one  of  the 
stages  of  the  process  that  runs  through  my  own  mind  in  the 
consideration  of  this  question,  the  stage  that  the  court  had  the 
power,  and  it  was  its  duty,  to  decide  the  question.  The  com- 
plainant claimed  the  right  to  have  an  injunction  issued,  the  de- 
fendants denied  it,  and  that  question  was  before  the  court.  It 
had  to  decide  that  question.  Then  the  objection,  or  the  proposi- 
tion, is  that  it  can  decide  it  only  in  one  way,  and  that  whether 
it  has  done  so  or  not  goes  to  its  jurisdiction;  that  the  right  of  the 
court  to  hear  and  determine  a case  depends  on  how  it  deter- 
mines it.  Well,  that  must  be  equally  true  if  the  question  to  be 
decided  arises  under  a statute.  The  court  has  no  more  right  to 
deny  a man  a statutory  right  than  a constitutional  right. 

The  Chief  Justice:  What  do  you  say  to  those  divorce  cases, 
for  example?  There  the  court  was  given  jurisdiction  by  state 
law  and  constitution  of  all  proceedings  in  divorce  cases,  but  the 
exercise  of  that  power  depended  on  a certain  condition  to  give 
the  court  jurisdiction. 

Mr.  Darlington:  To  get  jurisdiction  of  the  person. 

The  Chief  Justice:  But  in  that  case  he  was  the  person  who 
brought  the  suit. 

Mr.  Darlington:  True,  but  that  was  only  one  of  the  parties. 

The  Chief  Justice:  And  the  other  was  brought  into  the  suit 
in  the  manner  prescribed  by  law. 

Mr.  Justice  Robb:  But  he  never  was  in  the  state. 

The  Chief  Justice:  It  does  not  make  any  difference  whether 
he  was  in  the  state  or  not.  There  was  provision  for  service  by 


95 


publication,  and  the  courts  have  held  that  personal  service  is  not 
necessary. 

Mr.  Darlington:  Not  merely  in  divorce  cases,  but  in  civil 
suits.  Take  Pennoyer  vs.  Neff;  the  statute  of  Oregon  provided 
that,  in  an  attachment  suit,  you  could  reach  the  property  of  a 
defendant  by  publication,  and  if  its  proceeds  were  insufficient 
to  pay  the  debt,  a personal  judgment  could  be  recovered  for  the 
deficiency.  The  Supreme  Court  of  the  United  States  held  that 
the  statute  had  no  extra  territorial  application.  That  is,  the 
courts  of  Oregon  could  not,  by  means  of  its  provisions,  get 
jurisdiction  of  the  person  of  a defendant  who  lived  in  California. 

The  Chief  Justice:  Undoubtedly,  but  that  it  could  as  to  the 
attached  property.  It  was  also  said  in  regard  to  proceedings 
in  rent , in  a suit  to  quiet  title,  that  that  is  a proceeding  in  perso- 
nam, and  therefore  a nonresident  defendant  could  not  be  bound 
by  a judgment  obtained  by  publication. 

Mr.  Darlington:  Now  with  respect  to  the  divorce  matter,  a 
complainant  brought  suit  in  Connecticut,  against  a wife  who  lived 
in  New  York  and  had  never  lived  in  Connecticut,  a suit  for  di- 
vorce, and  he  obtained  publication  against  her  under  the  Con- 
necticut statute,  and  a divorce  which  was  perfectly  good  in  Con- 
necticut, like  the  attachment  which  was  good  in  Oregon ; but  the 
Supreme  Court  of  the  United  States  said  that  the  Connecticut 
legislature  could  not  give  its  court  jurisdiction  of  a New  York 
resident  by  anything  it  could  do;  that  the  court  never  obtained 
jurisdiction  of  the  person  of  the  wife,  and  that  therefore,  outside 
of  Connecticut,  the  Connecticut  statute  had  no  validity,  and 
that  the  decree  elsewhere  was  void.  I see  no  conflict.  It  is 
simply  an  application  of  the  universal  rule  that  state  statutes 
have  no  extra  territorial  effect,  and  that  they  can  not  affect  the 
rights  of  persons  who  are  not  residents  of  the  particular  state. 

The  Chief  Justice : But,  in  the  case  I mention,  the  act  of  the 
legislature  did  have  an  extra  territorial  effect,  and  it  was  so 
held.  It  has  been  held  constantly  that  decrees  of  divorce  have 
extra  territorial  effect  provided  the  court  has  jurisdiction  of  the 
subject  matter  and  of  the  party. 

Mr.  Darlington:  Of  both  parties? 

The  Chief  Justice:  No,  of  the  complainant,  because  the  de- 
fendant is  brought  in  by  publication. 

Mr.  Darlington : Pardon  me  for  asking,  but  does  your  Honor 
recall  any  instance  in  which  the  court  held  that  there  was  such 
extra-territorial  effect  ? 

The  Chief  Justice:  There  is  a case  in  181  U.  S.,  155. 

Mr.  Darlington : What  was  the  extra  territorial  effect? 

The  Chief  Justice:  The  party  was  married  in  New  York. 
They  lived  in  Kentucky.  They"  established  their  residence  in 

96 


Kentucky.  She  abandoned  him  there,  and  he  brought  suit  for 
divorce  under  the  Kentucky  law,  and  served  her  by  publication. 
She  in  New  York  brought  suit  against  him  for  divorce,  and 
he  pleaded  the  Kentucky  decree  in  bar.  The  New  York  Court 
of  Appeals  held  that  the  Kentucky  court  did  not  have  jurisdic- 
tion; the  Supreme  Court  of  the  United  States  held  that  it  did. 

Mr.  Darlington : There  the  parties  had  both  lived  in  Ken- 
tucky. That  state  had  been,  alone,  the  matrimonial  domicile — 
the  only  domicile  of  the  status  sought  to  be  dissolved. 

Mr.  Beck : That  case  was  distinguished  by  the  later  case  of 
Haddock  vs.  Haddock. 

The  Chief  Justice : And  Haddock  vs.  Haddock  decided  that 
it  was  not  such  a judgment  as  was  bound  to  be  respected  under 
the  statutory  provision  requiring  courts  to  give  effect  to  the 
judgments  of  other  courts,  and  they  held  that  it  was  optional 
with  the  states,  practically.  That  was  all  that  the  case  decided. 

Mr.  Darlington:  Now,  I come  back  to  the  proposition  I 
started  with,  that  not  one  of  the  cases  cited  on  the  other  side  is 
authority  for  the  doctrine  that,  where  a case  is  presented  by  a 
record  before  a court,  in  such  a way  that  that  court  is  called  upon 
to  decide  the  question,  its  erroneous  decision  ever  affects  its 
jurisdiction.  Of  all  the  cases  cited,  the  only  one  which  touches 
that  question  at  all  is  in  re  Parks,  93  U.  S.,  18,  and  that  case, 
I submit,  is  conclusive  against  the  proposition.  In  it  a man  was 
indicted  under  a Federal  statute  and  was  convicted  and  im- 
prisoned. He  brought  habeas  corpus,  claiming  that  the  offense 
with  which  he  was  charged  did  not  come  under  that  statute.  The 
Supreme  Court  said : 

“But  the  question  whether  it  was  or  was  not  a crime  within 
the  statute  was  one  which  the  district  court  was  competent  to 
decide.  It  was  before  the  court,  and  within  its  jurisdiction.  No 
other  court,  except  the  circuit  court  for  the  said  district,  having 
concurrent  jurisdiction,  was  as  competent  to  decide  the  question 
as  the  district  court.  Whether  an  act  charged  in  an  indictment 
is  or  is  not  a crime  by  the  law  which  the  court  administers  (in 
this  case  the  statute  law  of  the  United  States)  is  a question  that 
has  to  be  met  at  almost  every  stage  of  criminal  proceedings. 

* * * The  court  may  err,  but  it  has  jurisdiction  of  the 

question.” 

No  matter  how  the  court  decided  it,  it  was  a question  which 
the  court  was  competent  to  decide.  It  was  before  the  court  and 
within  its  jurisdiction.  That  is  all  that  is  necessary  to  constitute 
jurisdiction — that  the  question  shall  be  before  the  court  and  that 
it  is  within  its  jurisdiction  to  decide  it. 

I think  we  have  now  agreed,  if  I understand  the  court,  that 
this  question  whether  or  not  this  publication  should  be  enjoined, 
was  before  the  court,  and  was  a question  upon  which  the  court 


97 


had  jurisdiction  to  pass.  If  it  had  decided  it  in  favor  of  the 
appellants,  no  one  could  have  questioned  the  jurisdiction  or  the 
validity  of  the  decree.  It  is  only  because  it  decided  against  them 
that  it  is  contended  the  jurisdiction  did  not  exist.  Now,  I do 
not  understand  that  the  majority  opinion  of  this  court  holds  that 
the  Constitution  was  involved  in  the  decision  rendered;  but,  if 
it  was,  we  should  have,  at  most,  simply  a case  where  a court  of 
competent  jurisdiction  has  made  an  erroneous  decision  against 
a constitutional  right.  In  the  case  of  in  re  Parks  no  other  court 
except  the  Circuit  Court  for  the  District  having  concurrent  juris- 
diction, said  the  Supreme  Court,  was  as  competent  to  decide  the 
question  as  the  District  Court.  In  the  case  at  bar  there  was  not 
even  a court  of  concurrent  jurisdiction.  The  Supreme  Court 
of  the  District  of  Columbia  was  the  only  court  which  was 
competent  to  pass  upon  the  questions  presented  by  the  bill. 
The  Supreme  Court  said : “Whether  an  act  charged  in  an  indict- 
ment is  or  is  not  a crime  by  the  law  which  the  court  administers, 
is  a question  which  has  to  be  met  at  almost  every  stage  of 
criminal  proceedings.  * * * The  court  may  err,  but  it  has 
competent  jurisdiction  of  the  question.” 

That  is  the  only  case  in  the  long  list  cited  by  counsel  which 
bears  at  all  upon  this  question  of  an  erroneous  judgment  of  a 
question  which  the  court  has  the  right  to  hear  and  determine. 

Now,  let  us  take  the  others  very  briefly.  In  re  Mills,  135  U. 
S.,  63,  was  the  case  of  a sentence  to  the  penitentiary  for  a period 
less  than  one  year,  under  a statute  authorizing  penitentiary  sen- 
tences only  where  the  term  was  for  one  year  or  longer.  If  the 
gravity  of  the  offense  was  such  as  to  require  less  than  a year, 
the  court  had  no  jurisdiction  to  pass  such  a sentence.  The  court 
had  no  right  to  hear  the  question  whether  or  not  a penitentiary 
sentence  should  be  imposed,  if  the  offense  was  one  for  which  less 
than  a year’s  imprisonment  was  to  be  imposed. 

Ex  parte  Fisk,  113  U.  S.,  713,  was  a commitment  for  con- 
tempt by  a Federal  court  for  the  refusal  of  a witness  to  obey  a 
state  statute  in  a matter  of  practice,  which  statute  was  applicable 
to  state  courts  only.  The  Supreme  Court  of  the  United  States 
held  that  it  was  without  jurisdiction  to  decide  whether,  under  that 
statute,  which  had  no  application  to  the  Federal  courts,  a man 
was  guilty  of  an  offence. 

In  ex  parte  Robinson,  19  Wall,  505,  the  penalty  for  contempt 
was  limited  by  statute  to  either  a fine  or  imprisonment.  The 
court  undertook  to  hear  and  determine  the  question  whether  a 
man  could  be  disbarred  for  contempt,  a thing  wholly  outside  of 
its  jurisdiction.  It  was  given  no  authority  to  decide  that  ques- 
tion. The  utmost  question  of  authority  was  whether  he  should 
have  been  fined,  or  imprisoned. 

In  re  Ayres,  123  U.  S.  443,  there  was  an  injunction,  followed 
by  contempt  proceedings  against  the  attorney  general  of  a state. 
The  Supreme  Court  of  the  United  States  held  that,  although 


98 


the  suit  was  nominally  against  the  attorney  general,  it  was  really 
against  the  state,  and,  that,  therefore,  the  court  below  was  with- 
out jurisdiction  to  hear  and  determine  the  cause  at  all. 

In  ex  parte  Lang,  18  Wall,  163,  the  statute  authorized  fine  or 
imprisonment,  but  the  court  imposed  both  fine  and  imprisonment. 
The  Supreme  Court  held  that  this  did  not  make  it  void.  The 
invalid  thing  there  was  that,  after  the  accused  had  paid  the  fine, 
and  after  the  term  of  court  had  ended,  the  court  lost  jurisdiction 
of  the  matter.  Afterward,  it  undertook  to  recall  the  man  before 
it,  to  vacate  its  prior  decision  and  impose  a sentence  of  imprison- 
ment. The  Supreme  Court  said  the  court  below  had  no  jurisdic- 
tion to  do  that,  just  as  this  court  held,  in  the  case  of  Carrick  vs. 
Wetmore,  that,  after  the  close  of  the  term,  the  court  had  lost 
jurisdiction. 

In  ex  parte  Siebold,  100  U.  S.,  371,  the  jurisdiction  of  the  court 
depended  on  the  constitutionality  of  the  statute  under  which  the 
court  acted.  The  Supreme  Court  simply  held  that  the  question 
of  the  authority  of  the  court  to  try  and  imprison  the  party,  that 
is,  to  determine  the  constitutionality  of  the  law  under  which  it 
acted,  might  be  reviewed  on  habeas  corpus,  and  it  further  held 
that  an  error  in  the  judgment  or  proceedings  under  and  by  virtue 
of  which  the  party  was  imprisoned,  constituted  no  ground  for 
the  issuance  of  the  writ. 

Referring  further  to  in  re  Parks,  the  Supreme  Court  held  that 
the  court  below  had  jurisdiction  of  the  case,  and  it  refused  to 
interfere  because  the  court  had  jurisdiction  of  the  cause. 

The  Chief  Justice : What  do  you  say  about  this  case,  where 
the  Supreme  Court  released  parties  who  were  convicted  under 
information  when  they  held  that  they  should  have  been  indicted? 
The  court  there  had  jurisdiction  of  the  criminal  offense. 

Mr.  Darlington : Did  they  have  jurisdiction  at  all,  under — 

The  Chief  Justice:  They  had  jurisdiction  of  the  criminal  of- 
fense, and  the  court  was  called  upon  to  determine  the  question 
of  law,  whether  the  prosecution  could  proceed  under  an  indict- 
ment or  an  information,  and  it  held  that  it  could  proceed  under 
an  information,  and  sentenced  the  party,  and  the  Supreme  Court 
of  the  United  States  released  the  defendant  on  a writ  of  habeas 
corpus,  on  the  ground  that  the  judgment  was  null  and  void  be- 
cause the  Constitution  required  in  that  class  of  cases  that  there 
should  be  a prosecution  by  indictment. 

Mr.  Darlington : That  case  appears  to  me  to  be  very  clearly 
one  of  jurisdiction,  purely.  The  fact  that  a court  has  jurisdiction 
of  criminal  cases  does  not  give  jurisdiction  of  crimes,  which  are 
not  brought  before  it  in  some  authorized  manner. 

_ The  Chief  Justice : But  the  court  has  to  determine  that  ques- 
tion. The  court  had  to  determine  whether  this  was  .an  infamous 
crime.  If  it  was,  then  it  could  not  be  prosecuted  except  upon 


09 


indictment.  If  it  was  not  an  infamous  crime,  then  the  proceed- 
ing could  be  upon  information.  The  court  decided  that  the 
crimes  were  not  infamous,  and  permitted  the  prosecution,  and 
sentenced  the  defendants  upon  an  information  -and  they  were  re- 
leased, because  the  Supreme  Court  of  the  United  States  held 
that  the  court  below  erred  in  determining  that  this  was  not  an 
infamous  crime. 

Mr.  Darlington : It  seems  to  me  that  the  process  by  which 
a man  is  brought  before  the  court  is  jurisdictional,  a question  al- 
ways to  be  inquired  into;  that  it  would  be  just  as  competent  to 
try  a man  for  murder  without  either  indictment  or  information 
as  to  try  him  on  information.  It  seems  to  me  that  would  be  the 
clearest  kind  of  a jurisdictional  question.  The  court  does  not  get 
jurisdiction  of  the  person  of  the  defendant. 

Mr.  Justice  Robb:  He  was  never  before  the  court. 

Mr.  Darlington:  Not  at  all.  The  court  did  not  get  jurisdic- 
tion of  his  person  in  that  class  of  cases.  That  is  the  distinction 
that  occurs  to  me. 

The  Chief  Justice:  He  found  that  he  was  before  the  court. 
He  found  himself  in  prison ; but  of  course  you  mean  in  the  legal 
contemplation.  But,  as  a matter  of  fact,  I am  just  following 
out  your  doctrine,  it  seems  to  me,  to  see  what  it  will  lead  to, 
that,  wherever  a court  has  to  determine  any  question  with  rela- 
tion to  its  jurisdiction  or  power,  that  then  it  has  jurisdiction  to 
that  extent  that  its  judgment  would  not  be  void. 

Mr.  Darlington : No,  I am  not  contending  that  the  court’s  de- 
cision as  its  own  jurisdiction  is  conclusive.  That  has  been  very 
many  times  determined  the  other  way;  but,  where  there  is  a case 
which  the  court  must  decide,  in  one  way  or  in  another, 
the  fact  that  it  decides  it  erroneously,  does  not  affect,  and  can 
not  enter  into,  the  question  of  its  jurisdiction. 

In  ex  parte  Rowland,  the  court  had  ordered  certain  assessing 
officers  to  collect  a tax  which  they  had  no  authority  under  the 
law  to  collect.  Therefore,  the  court  had  no  jurisdiction. 

In  In  re  Sawyer  (124  U.  S.,  200),  the  court  undertook  to 
enjoin  a mayor  and  council  from  removing  a police  judge.  The 
Supreme  Court  held  that  to  be  in  violation  of  the  well-settled 
principle  that  a court  of  equity  has  no  jurisdiction  over  the 
appointment  and  removal  of  public*  officers.  That  was  a question 
of  jurisdiction. 

Elliott  vs.  Piersol,  1 Peters,  328,  the  remaining  case  cited  in 
the  opposing  brief,  was  a case  in  which  a county  court  undertook 
to  exercise  a jurisdiction  not  conferred  by  statute,  thus,  also  pre- 
senting a question,  not  of  error,  but  of  jurisdiction. 

No  one  of  these  cases  is  authority  for  the  proposition  that  a 
court,  having  jurisdiction  to  hear  and  determine  a cause,  in  one 
way  or  in  another,  loses  that  jurisdiction  if  it  decides  the  case 
in  a manner  which  the  appellate  court  decides  to  be  erroneous. 


100 


And  now,  after  a very  brief  reference  to  a long  line  of  cases, 
which  I shall  cite  very  briefly,  I will  conclude  an  argument  which 
is  much  longer  than  I had  intended  it  to  be. 

The  first  is  the  leading  case,  leading  both  in  the  citations  on 
which  it  rests,  in  its  reasoning,  and  in  the  fact  that  it  will  be 
found  cited  in  nearly  every  case  in  which  this  question  is  dis- 
cussed, the  case  of  The  People  vs.  Sturtevant,  9 N.  Y.,  266-7 : 

“To  enable  us  to  say  whether  the  Superior  Court  had  juris- 
diction, and  whether,  consequently,  its  injunction  * * * 

was  void  or  not,  it  will  be  convenient  to  recur  to  some  almost 
elementary  notions  upon  the  subject.  In  the  State  of  Rhode 
Island  vs.  The  State  of  Massachusetts,  12  Peters,  718,  Mr.  Jus- 
tice Baldwin,  delivering  the  opinion  of  a majority  of  the  Su- 
preme Court  of  the  United  States,  says : ‘ Jui-isdietion  is  the 
power  to  hear  and  determine  the  subject  matter  in  controversy 
between  the  parties  to  the  suit;  to  adjudicate,  or  exercise  any 
judicial  power  over  them;  the  question  is,  whether  on  the  case 
before  the  court,  that  action  is  judicial  or  extra  judicial;  with 
or  without  the  authority  of  law  to  render  a judgment  or  decree 
upon  the  rights  of  the  litigant  parties.  If  the  law  confers  the 
power  to  render  a judgment  or  decree,  then  the  court  has  jurisdic- 
tion; what  shall  be  adjudged  or  decreed  between  the  parties,  and 
with  which  is  the  right  of  the  case,  is  judicial  action,  by  hear- 
ing and  determining  it.’  (See  also,  Grignons  Lessee  vs.  Astor, 
2 How.  338.)” 

That  is  the  principle  I have  been  contending  for.  Jurisdiction 
is  the  power  to  hear  and  determine  the  subject  matter  in  con- 
troversy between  the  parties  to  the  suit,  and  this  is  what  the 
Supreme  Court  says,  as  quoted  and  followed  in  this  case.  The 
opinion  continues : 

“This,  I apprehend,  points  to  the  true  line  of  inquiry  to  deter- 
mine the  question  of  jurisdiction.  We  are  not  called  upon  to  say 
whether  the  courts  decided  right  or  not,  in  granting  the  injunc- 
tion, but  whether  it  became  their  duty  to  decide  either  that  it 
should  be  granted  or  denied.  If  such  was  their  duty,  then  they 
had  jurisdiction,  and  their  decision,  be  it  correct  or  erroneous, 
is  the  law  of  the  case  until  it  shall  be  reversed  on  appeal ; and 
can  only  be  questioned  upon  a direct  proceeding  to  review  it,  and 
not  collaterally.” 

Now,  can  there  be  any  question,  in  the  case  at  bar,  that  it 
was  the  duty  of  the  court  below  to  decide  whether  or  not  the 
injunction  asked  should  be  granted  or  denied? 

Again,  on  pages  269  and  270,  the  court  continues : 

“Jurisdiction  does  not  relate  to  the  right  of  the  parties,  as  be- 
tween each  other,  but  to  the  power  of  the  court.  The  question 
of  its  existence  is  an  abstract  inquiry,  not  involving  the  existence 
of  an  equity  to  be  enforced,  nor  the  right  of  the  plaintiff  to 


101 


avail  himself  of  it  if  it  exists.  It  precedes  this  question,  and 
a decision  upholding  the  jurisdiction  of  the  court  is  entirely  con- 
sistent with  the  denial  of  any  equity  either  in  the  plaintiff  or  in 
any  one  else.  The  case  we  are  considering  illustrates  the  dis- 
tinction I am  endeavoring  to  point  out,  as  well  as  any  supposed 
case  can.  It  presents  these  questions : Have  the  plaintiffs  shown 
the  right  to  the  relief  which  they  seek : and  has  the  court  author- 
ity to  determine  whether  they  have  shown  such  right?  A wrong 
determination  of  the  first  question  is  error,  but  can  be  re-ex- 
amined only  on  appeal.  The  other  question  is  the  question  of 
jurisdiction.  It  is  that  alone  with  which  we  now  have  anything 
to  do.  Whether  the  plaintiffs  are  the  proper  persons  to  main- 
tain the  suit,  or  whether  the  attorney  general  should  have  brought 
it,  or  whether  the  facts  show  a right  in  either  to  have  a decree 
in  their  favor,  are  questions  which  we  are  not  in  this  proceeding 
called  upon  to  consider.  They  relate  to  the  equity  of  the  claim, 
and  not  to  the  power  of  the  court.” 

The  case  of  Pokagama  Sugar  Pine  Lumber  Company  vs. 
Klamath  Lumber  Company,  in  86  Fed.  Rep.  538-9,  presents  the 
same  question,  whether  a restraining  order  was  void  or  voidable ; 
whether  or  not  it  was  contempt  to  disobey  it  after  the  restrain- 
ing order  was  issued : 

“When  this  restraining  order-  was  issued,  there  had  been  pre- 
sented to  the  judge  of  this  court  a verified  bill  of  complaint,  in 
which  the  complainant  demanded  equitable  relief,  and  set  forth 
facts  upon  which  this  relief  was  claimed,  and  upon  these  facts 
the  restraining  order  was  made.  When  the  bill  of  complaint 
was  presented  to  the  judge  of  this  court,  it  became  his  duty  to 
consider  and  decide,  upon  the  facts,  whether  or  not  to  grant  the 
order  asked  for  by  the  complainants.  He  had  the  power  to  de- 
cide this  question,  and,  having  determined  that  the  facts  were 
sufficient  to  warrant  him  in  issuing  the  order,  the  order  so  is- 
sued was  valid  and  binding,  and  should  have  been  received  and 
obeyed,”  citing  a number  of  authorities,  Federal  and  State.  The 
objection  that  the  order  was  mandatory  in  its  effect  has  been 
considered  and  disposed  of  on  the  motion  to  modify  the  order. 
But  for  the  present  purpose  it  is  sufficient  to  say  that,  although 
it  may  ultimately  be  determined  that  this  order  for  that  reason 
was  erroneous,  it  was  nevertheless  within  the  power  of  the  court 
to  grant,  and  it  should  have  been  obeyed.  If  there  was  any  doubt 
as  to  its  scope  and  character,  the  question  should  have  been  sub- 
mitted to  the  court  for  its  determination.” 

So  in  the  case  before  this  court,  the  bill  presented  a case  for 
the  court  to  pass  upon,  and  that  this  necessarily  the  power  to 
pass  upon  it  either  way.  Whether  it  passed  upon  it  erroneously 
or  otherwise  was  a matter  which  might  be  determined,  only,  upon 
appeal. 

In  the  case  of  Forest  vs.  Price,  52  N.  J.  Eq.  Rep.,  23,  Forest 
had  recovered  a judgment  against  Price,  and,  the  judgment 


102 


being  unsatisfied,  had  filed  a bill  to  restrain  the  de- 
fendant from  collecting  certain  money  which  was  about 
to  be  paid  to  him  by  the  Treasurer  of  the  United 
States  pursuant  to  an  act  of  Congress.  A restraining  order  was 
issued,  subsequent  to  which  Price  received  certain  treasury 
drafts,  upon  which  he  collected  the  money.  He  was  cited  for 
contempt  in  violating  the  restraining  order,  and  interposed  sev- 
eral objections,  one  of  which  was  that,  this  being  public  money, 
it  was  unconstitutional  to  attach  it,  because  it  tended  to  paralyze 
the  operations  of  the  government.  The  court  said : 

“It  is  no  excuse  in  a contempt  proceeding  that  the  orders  con- 
demned are  erroneous  in  law.  The  method  of  correcting  such 
error  is  by  appeal,  not  by  disobedience.  When  a person  is  pro- 
ceeded against  for  disobedience  to  an  order  or  judgment,  he 
can  not  allege  as  a defense  that  the  court  erred  in  that  order  or 
judgment.” 

The  Chief  Justice:  I do  not  think  that  anybody  denies  that  if 
it  is  a mere  error,  that  if  the  court  had  merely  erred  in  the  exer- 
cise of  jurisdiction  which  it  has — nobody  denies  that  this  order 
must  be  obeyed  until  it  is  reversed,  and  that  it  can  not  be  col- 
laterally impeached. 

Mr.  Darlington : And  it  can  not  be  alleged  as  a defense  that 
the  court  erred  in  that  order  and  judgment.  In  order  to  be 
successful,  they  must  go  further  and  make  out  that  thefe  was, 
in  effect,  no  order,  by  showing  that  the  court  had  no  right  to 
judge  between  the  parties  on  that  subject.  Can  that  be  said  of 
this  injunction,  or  any  phase  of  it?  Was  not  the  court  properly 
called  on  to  decide  between  the  parties? 

The  Chief  Justice:  Your  contention  practically  is  that,  if  the 
court  had  jurisdiction  of  the  case  for  certain  purposes,  or  to  a 
certain  extent,  then  it  may  exceed  its  power  and  the  judgment  can 
not  be  impeached  collaterally. 

Mr.  Darlington:  No,  sir;  I am  not  contending  for  that.  I say 
there  is  no  question  presented  in  or  by  this  bill  which  the  court 
was  not  properly  called  upon  to  pass  upon,  and  to  decide.  If  the 
court  below  had  decided  that  these  appellants  were  not  subject  to 
injunction,  there  is  nothing  in  this  case  which  would  have  led 
your  Honors  to  hold  that  there  was  no  jurisdiction.  It  was  only 
because  the  case  was  decided  the  other  way  by  the  court  below 
that  it  is  suggested  there  was  error. 

The  Chief  Justice:  We  have  held  that  it  had  jurisdiction,  but 
the  question  is  that  it  exceeded  its  jurisdiction  in  that  part  of 
its  decree. 

/ 

Dr.  Darlington:  Was  there  any  phase  of  the  bill,  any  claim 
in  the  bill,  which  this  court  has  held,  or  will  hold,  that  the  court 
below  had  no  right  to  judge  as  between  the  parties  and  to  de- 
cide? If  there  is  anything  in  the  bill  which,  if  decided  in  favor 


103 


of  the  appellants,  it  could  have  been  claimed  was  beyond  its 
jurisdiction — suppose  it  had  denied  everything  that  this  court  has 
held  ought  to  have  been  disallowed?  Could  it  have  been  con- 
sidered to  have  had  no  jurisdiction?  If  it  had  jurisdiction  to  deny 
them,  it  had  jurisdiction  to  allow  them,  and  this  under  all  the 
authorities. 

The  Chief  Justice:  The  court  takes  jurisdiction  of  a case  and 
issues  certain  orders.  Certain  of  those  orders  may  be  perfectly 
legal  and  perfectly  correct.  But  the  court  may  exceed  its  power 
and  order  a person  to  do  something  that  no  court  has  the  author- 
ity to  do.  Can  you  not  make  any  distinction  between  those  or- 
ders and  say  that  the  order  stands  as  to  the  one  and  does  not 
stand  as  to  the  other,  which  the  court  had  no  power  to  do? 

Mr.  Darlington : There  is  the  very  greatest  distinction  in  my 
mind,  in  such  a case.  If  this  bill  had  sought  any  relief  as  to  the 
complainant’s  right  to  which  the  court  had  no  jurisdiction  to 
decide,  the  court  must  have  denied  it,  not  on  the  ground  that  the 
complainant  was  not  entitled,  but  on  the  ground  that  it  had  no 
jurisdiction  to  entertain  the  bill,  or  to  decide  upon  the  question 
presented  by  it. 

Mr.  Justice  Van  Orsdel : In  restraining  the  distribution  or 
the  sending  through  the  mails  of  the  American  Federationist? 

Mr.  Darlington : Yes.  Now,  had  the  court  the  right  to  decide 
whether  the  Constitution  prohibited  that  or  not  ? This  court 
has  held  that  it  did  have  the  right  to  enjoin  the  putting  into 
the  papers  that  went  through  the  mails  the  name  of  this  cqm- 
plainant  in  this  unfair  list,  for  the  purpose  of  a boycott.  The 
Constitution  did  not  prohibit  the  enjoining  of  these  appellants 
from  doing  that.  There  was  no  violation  of  a constitutional 
right  in  that.  Had  not  the  court  the  right  to  pass  upon  the  ques- 
tion whether  sending  the  Federationist  containing  that  statement 
through  the  mails  was  or  was  not  an  unlawful  violation  of  the 
rights  of  the  complainant  and  subject  to  injunction?  Had  not  the 
court  the  right  to  pass  upon  that  question,  to  decide  it  one  way 
or  the  other?  Because,  if  it  had  the  right  to  decide  it  in  one 
way,  it  had  the  right  to  decide  it  in  the  other.  That  is  jurisdic- 
tion, the  right  to  hear  and  determine — not  the  right  to  hear  and 
determine  correctly,  only. 

The  Chief  Justice : Congress  has  the  power  to  legislate  gen- 
erally. It  has  jurisdiction  or  power  to  legislate — 

Mr.  Darlington:  Not  jurisdiction. 

The  Chief  Justice:  Not  in  the  sense  of  a court,  but  it  has 
political  jurisdiction. 

Mr.  Darlington : Jurisdiction  belongs  entirely  to  the  courts. 

The  Chief  Justice  : Congress  is  called  upon  to  construe  the  Con- 
stitution. It  enacts  law.  When  it  does  that  it  is  acting  within 


104 


its  power.  Yet  the  man  who  disobeys  a law  of  Congress  is  not 
subject  to  any  penalty  if  the  courts  find  that  Congress  exceeded 
its  constitutional  power,  in  other  words  erred  in  its  construction 
of  the  Constitution  in  that  particular  case. 

Mr.  Darlington : I agree  that  if  the  power  of  Congress  to 
pass  laws  has  any  analogy  to  the  jurisdiction  of  a court  to  hear 
and  determine  cases,  then  it  would  be  very  difficult  to  sustain 
any  actions  of  a court  which  may  ultimately  be  found  to  be  er- 
roneous. 

The  Chief  Justice : If  you  make  a distinction  between  juris- 
diction and  power,  it  might  be  so.  But  there  are  other  powers 
in  this  government.  The  legislature  has  the  power  to  do  cer- 
tain things.  It  has  to  consider  and  determine  its  power.  It 
has  to  construe  the  Constitution  every  time  it  legislates.  Now, 
the  court  is  vested  with  power  to  examine  the  Constitution,  the 
power  to  say  whether  a certain  act  of  Congress  is  the  law  which 
is  in  conformity  to  the  Constitution,  and  if  it  finds  that  the  legis- 
lature has  made  a mistake  in  its  construction,  it  declares  its  law 
null  and  void  in  any  case  that  arises  under  it. 

Mr.  Darlington  : Let  me  illustrate  what  I mean.  Your  Honors 
agree — we  must  all  agree — that  the  court  may  make  an  erroneous 
decision,  one  which  it  erred  in  making,  but  which  will  be  bind- 
ing, nevertheless,  until  it  is  reversed  by  a court  of  review.  It 
may  mistake  the  rights  of  the  parties,  certainly  under  the  com- 
mon law,  certainly  under  the  statute  law,  and  as  certainly,  I sub- 
mit, under  the  constitutional  law.  Suppose  your  Honor’s  view 
of  that  is  correct,  and  I am  wrong.  The  court  may  make  a de- 
cree which  is  erroneous,  and  so  erroneous  that  it  will  be  deter- 
mined to  be  invalid.  We  all  agree  that,  until  it  has  been  reversed 
by  the  upper  court,  it  is  binding,  but  that  is  not  true  of  the 
legislature.  The  legislature  can  pass  no  law  which  is  binding  un- 
til some  higher  authority  reverses  it,  and  therefore,  there  is  no 
analogy  whatever.  It  is  like  the  answer  that  theologians  make 
when  it  is  said  that  as  the  grass  of  the  field  perishes,  so  perishes 
the  human  race;  it  is  answered  that  there  is  no  analogy,  because 
the  grass  has  no  soul,  so  that  the  attempted  analogy  is  with  a 
body  which  lacks  the  very  element  the  immortality  of  which  is 
in  dispute. 

The  Chief  Justice:  People  say,  “This  legislation  is  foolish  and 
ill-advised.”  But  that  is  not  a question  for  the  court.  That  is 
a matter  which  Congress  must  determine. 

Mr.  Darlington:  That  does  not  affect  its  validity. 

The  Chief  Justice:  But  the  courts  may  act  erroneously  and 
its  errors  stand  like  those  of  Congress,  against  any  collateral  im- 
peachment. 

Mr.  Darlington : Does  an  act  of  Congress  ever  stand  against 
collateral  impeachment?  That  is,  can  there  be  any  analogy  be- 
tween the  error  of  an  act  of  Congress  which  affects  its  validity, 
and  the  errors  of  a court? 


105 


The  Chief  Justice:  The  only  thing  that  a Court  can  inquire 
about  an  act  of  Congress  is  as  to  the  power  of  Congress.  The 
act  may  be  ruinous  to  the  country,  and  yet  the  court  must  let  it 
stand  if  Congress  has  the  power  to  enact  it. 

Mr.  Darlington : If  the  error  of  Congress,  in  the  case  supposed, 
goes  to  the  validity  of  the  act,  then  it  never  had  any  existence 
at  any  time.  It  does  not  last  until  some  court  can  pass  upon  it ; 
it  is  invalid  from  the  beginning.  If  the  error  affects  its  validity, 
it  is  void  from  the  beginning.  In  a judicial  proceeding  that  is 
not  true.  There  may  be  error  in  the  decision  of  the  court,  and 
such  error  that,  whenever  it  reaches  the  court  of  review,  it  is 
held  invalid  and  set  aside,  but  until  that  occurs  it  is  binding. 

The  Chief  Justice : Of  course. 

Mr.  Darlington:  Now,  we  are  discussing  the  question  whether 
this  injunction  falls  in  that  class.  It  has  no  analogy  to  an  act 
of  Congress,  or  to  any  legislation,  because  legislation,  if  erro- 
neously passed,  possesses  no  such  instant  and  binding  force  until 
reversed.  There  is  no  analogy,  to  apply. 

In  this  case  of  Forest  vs.  Price,  the  court  continues : 

“To  be  successful,  he  must  go  further  and  make  out  that  there 
was,  in  legal  effect,  no  order,  by  showing  that  the  court  had  no 
right  to  judge  between  the  parties  upon  the  subject.” 

That  there  was,  in  effect,  no  order  to  violate. 

“Recognizing  this  well-established  principle,  the  defendant 
denies  the  jurisdiction  of  the  court  to  make  the  order  here  in 
question,  upon  three  grounds : 1st,  because  the  fund  is  a gov- 
ernmental bounty  to  him,  designed  for  his  personal  maintenance 
and  comfort,  and  therefore  is  not  liable  to  application  to  the  satis- 
faction of  the  judgment  of  the  complainant,  however  meritorious 
it  may  be ; 2d,  because  the  restraints  of  the  endorsement  of  the 
government  drafts  tended  to  interfere  with  and  delay  the  fiscal 
operations  of  the  government.” 

Suppose  the  trial  court  had  passed  an  order  that  the  treasurer 
of  the  United  States  should  not  issue  any  warrants  to  pay  the 
police  force  of  the  army.  Could  that  have  been  a stronger  case 
than  there  was  in  this  case? 

The  Chief  Justice : Do  you  not  think  such  an  order  would  be 
absolutely  void,  if  the  court  undertook  to  enjoin  an  officer  of 
the  United  States  concerning  matters  that  the  United  States  and 
not  the  officer  was  concerned  in ; that  because  no  one  can  sue  the 
United  States,  the  court  could  not  issue  an  order  against  it  that 
would  bind  it,  and  that  would  not  be  absolutely  void? 

Mr.  Darlington:  The  analogy  would  not  be  absolutely  per- 
fect, because  the  court  would  have  no  jurisdiction  over  the  of- 
ficer, but  otherwise  I think  it  is  correct.  The  court  in  this  case 
proceeds : 


106 


“3d,  because  the  assignment  of  the  moneys  to  a receiver,  as 
contemplated  by  the  orders  of  October  10,  1892,  and  December 
21,  1893,  would  contravene  the  letter  and  policy  of  the  law 
enacted  in  the  3,477th  section  of  the  Revised  Statutes  of  the 
United  States,  as  being  a nullity.  In  Munday  vs.  Vail,  Chief 
Justice  Beasley  defines  jurisdiction  to  be  a right  to  adjudicate  the 
subject  matter  in  a given  case,  to  constitute  which  it  is  essential 
that  the  court  must  have  cognizance  of  the  class  of  cases  to 
which  the  one  adjudged  belongs;  that  the  proper  parties  shall  be 
before  the  court,  and  that  the  point  decided  must,  in  substance 
and  in  effect,  be  within  the  issue  made  by  the  pleadings.  Test- 
ing the  present  case  by  this  definition,  we  first  ascertain  that 
its  subject  matter  is  the  application  of  the  defendant’s  established 
and  ascertained  property  in  possession  of  the  United  States  to 
the  satisfaction  of  the  complainant’s  judgment.  That  this  court 
has  cognizance  of  this  class  of  cases  is  not  disputed.  The  de- 
fendant is  regularly  before  the  court,  and  the  points  to  be  de- 
cided are  clearly  within  the  issues  presented  by  the  pleadings. 
To  urge  that  the  particular  money  in  question  is  exempt  from 
the  application  desired,  is  to  present  a defense  upon  the  merits 
of  the  case,  and  to  object  that  the  temporary  restraint  of  the  en- 
dorsement of  drafts  will  injure  and  delay  the  fiscal  operations  of 
the  United  States,  is  to  offer  a reason  why  the  court  should  not 
continue  its  temporary  restraint,  and  so  the  insistment  that,  under 
the  section  of  the  United  States  Revised  Statutes  which  has 
been  referred  to,  the  assignment  to  a receiver  would  be  a nullity, 
may  be  a reason  why  the  court  should  not  order  it  to  be  made. 
None  of  these  matters,  however,  go  to  the  court’s  jurisdiction — 
they  are  defenses  belonging  in  the  cause  which  the  court  has 
power  to  adjudicate  upon.  If  the  courts  err  in  that  adjudication, 
the  remedy  is  by  appeal.” 

If  the  courts  err  in  denying  a right  to  a man  which  is  conferred 
by  a statute  of  the  United  States,  the  remedy  is  by  appeal,  and 
it  does  not  justify  the  violation  of  an  injunction. 

In  in  re  Sawyer,  the  court  says : 

“As  this  court  has  often  said,  ‘where  a court  has  jurisdiction, 
it  has  a right  to  try  every  question  which  occurs  in  the  cause, 
and,  whether  its  decision  be  correct  or  otherwise,  its  judgment, 
until  reversed,  is  binding  in  every  other  court.’  ” 

So  that  the  question  in  our  case  is,  was  there  any  question  pre- 
sented by  the  bill  which  the  court  was  without  jurisdiction  to 
decide  ? 

(At  12  :30  o’clock,  p.  m.,  the  Court  took  a recess  until  1 o’clock, 
p.  m.) 

AFTER  RECESS. 

Mr.  Darlington : There  are  two  authorities  which  I desire  to 
add  to  those  cited  by  me  this  morning  on  the  subject  of  a common 
law  record.  The  first  is  Bullock  Company  vs.  Westinghouse 
Company,  129  Fed.  Rep. 


107 


The  Chief  Justice:  You  want  to  add  that  to  your  brief? 

Mr.  Darlington:  Yes,  on  the  motion  to  dismiss. 

Mr.  Justice  Van  Orsdel : That  comes  at  the  end  of  your  brief? 

Mr.  Darlington:  At  the  beginning,  the  first  part  of  it.  Bul- 
lock Company  vs.  Westinghouse  Company,  129  Fed.  Rep., 
106-7.  Your  Honors  will  find  it  on  the  brief  filed  by  Mr.  Daven- 
port. 

The  other  case  is  Board  of  Councilmen  vs.  Deposit  Bank,  127 
Fed.  Rep.,  812.  Both  are  Circuit  Court  of  Appeals  cases,  and 
both  hold  that  these  matters  must  be  brought  up  on  a common 
law  record. 

Now,  I want  to  call  the  attention  of  the  court  to  a case  which 
it  seems  to  me  it  would  be  impossible  to  distinguish  from  this 
one.  That  is  the  case  of  People  vs.  Bouchard,  27  N.  Y.  Sup.,  201. 

“I  think  the  plaintiff,  upon  this  motion  to  punish  the  defendant 
for  contempt  and  for  violating  an  injunction,  has  failed  to  estab- 
lish that  the  defendant  has  sold  oleomargarine  or  butterine  ‘as 
butter  the  product  of  the  dairy/  It  is  not,  however,  denied  by 
the  defendants  but  that  he  has  since  the  service  of  the  injunction 
upon  him,  sold  oleomargarine  or  butterine;  and  it  is  charged 
by  the  plaintiff,  and  not  denied  by  the  defendant,  that  such  oleo- 
margarine or  butterine  is  an  ‘imitation  or  a semblance  of  but- 
ter, the  product  of  the  dairy and  he  has  therefore  violated  that 
portion  of  the  injunction  prohibiting  him  from  ‘selling  oleomar- 
garine or  butterine  which  is  an  imitation  or  semblance  of  butter 
the  product  of  the  dairy/  The  defendant  is  therefore  guilty  of 
contempt,  for  ‘unless  the  order  was  void  upon  its  face  for  lack 
of  jurisdiction  on  the  part  of  the  judge  (court)  who  granted  it, 
it  was  the  duty  of  the  defendant  to  obey  it/  * * * I do  not 

think  it  profitable  to  review  the  question  raised  by  the  defendant 
as  to  the  constitutionality  of  that  portion  of  section  26  of 
chapter  338  of  the  Laws  of  1893,  which  prohibits  the  manufac- 
ture or  sale  of  ‘any  article  or  substance  of  human  food  in  imi- 
tation or  semblance  of  natural  butter/  ” 

Here  was  a case  where  the  question  depended  on  the  consti- 
tutionality of  the  law. 

“If  that  portion  of  the  act  is  unconstitutional,  and  the  in- 
junction order  heretofore  granted  was  in  that  particular  er- 
roneous, the  remedy  of  the  defendant  was  to  move  to  vacate 
or  modify  the  same,  or  appeal  from  the  order  granting  it,  and 
not  to  undertake  to  test  the  question  by  disobeying  the  order  of 
the  court.” 

As  I say,  if  this  case  is  in  any  respect  distinguishable  from 
the  one  here,  I have  failed  to  discover  it. 

“Assuming  the  act  in  question  to  be  unconstitutional,  I do  not 
think  that  would  render  the  injunction  void  on  its  face.  The 
court  had  jurisdiction  of  the  person  of  the  defendant  and  the 
subject  matter  of  the  action.  It  had  jurisdiction  to  determine 
whether  the  act  under  which  the  plaintiff  proceeds  is  a valid  act. 
‘Jurisdiction  is  the  power  to  hear  and  determine  the  subject  mat- 


108 


ter  in  controversy  between  the  parties  to  a suit;  to  adjudicate 
or  exercise  any  judicial  power  over  them.  The  question  is 
whether,  in  a case  before  a court,  their  action  is  judicial  or 
extra  judicial,  with  or  without  authority  of  law  to  render  a 
judgment  or  decree  upon  the  rights  of  the  litigant  parties.  If 
the  law  confers  the  power  to  render  a judgment  or  decree,  then 
the  court  has  jurisdiction.  What  shall  be  adjudged  or  decreed 
between  the  parties,  and  with  which  is  the  right  of  the  case,  is 
judicial  action  by  hearing  and  determining  it,’  Fisher  vs. 
Hepburn,  48  N.  Y.,  41.  The  only  question  is,  had  the  court 
power  to  pass  upon  the  question?  If  it  had,  the  order  is  not 
void  upon  its  face,  although  the  court  may  have  come  to  a 
wrong  determination.  People  vs.  Sturtevant,  9 N.  Y.,  263. 
Whether  the  law  is  constitutional  or  not  is  a judicial  question 
to  be  determined  by  the  court,  and  it  could  prohibit  action  by 
the  defendant  until  it  could  investigate  and  finally  determine. 
People  vs.  Dwyer,  90  N.  Y.,  402.” 

The  Chief  Justice:  What  court  is  this? 

Mr.  Darlington:  27  N.  Y.  Sup.,  p.  201-2.  Now  a much  older 
case,  that  of  Davis  vs.  Packard,  10  Wendell,  71 : 

“The  power  to  decide  correctly,  and  to  enforce  a decision 
where  correctly  made,  necessarily  implies  the  same  power  to  de- 
cide incorrectly  and  to  enforce  a decision  when  incorrectly  made.” 

In  other  words,  there  are  but  three  classes  of  laws,  namely : 
constitutions,  statutes,  and  the  common  law.  Whether  the 
right  upon  which  the  court  is  asked  to  pass  is  constitutional, 
statutory  or  common  law,  the  rule  is  the  same.  If  the  court  has 
the  power  to  hear  and  determine  the  cause,  then  its  act  is 
binding  until  its  action  is  reversed  or  reviewed.  Its  jurisdiction 
can  not  depend  on  the  manner  in  which  it  decides  the  ques- 
tion. The  jurisdiction  is  the  right  to  decide  it  at  all.  . 

In  Chase  vs.  Christiansen,  41  Cal.  253,  the  court  said: 

“It  is  not  the  particular  decision  which  determines  jurisdic- 
tion, but  it  is  the  authority  to  decide  the  question  at  all.  Other- 
wise the  distinction  between  erroneous  exercise  of  jurisdiction  on 
the  one  hand,  and  the  total  want  of  it  on  the  other,  must  be 
obliterated.” 

We  have  here  a new  definition  of  jurisdiction,  or  rather,  a 
new  way  of  stating  it:  “Jurisdiction  is  the  right  to  put  the 
wheels  of  justice  in  motion,  and  to  proceed  to  a final  deter- 
mination of  the  case  upon  the  pleadings  and  evidence;” 

If  the  court  below  had  that  right,  then  it  had  jurisdiction. 

“It  exists  in  the  circuit  courts  of  the  United  States  under  the 
express  terms  of  the  act  of  August  13,  1888,  if  the  plaintiff  be 
a citizen  of  one  state,  the  defendant  a citizen  of  another;  if  the 
amount  in  controversy  exceed  $2,000,  and  the  defendant  be 


109 


properly  served  with  process  within  the  district.  Excepting  cer- 
tain qusai- jurisdictional  facts,  necessary  to  be  averred  in  par- 
ticular cases,  and  immaterial  here,  these  are  the  only  facts  re- 
quired to  vest  jurisdiction  of  the  controversy  in  the  circuit  courts. 
It  may  undoubtedly  be  shown  in  defense  that  plaintiff  has  no  right 
under  the  allegations  in  his  bill,  or  the  facts  of  the  case,  to 

bring  suit,  but  that  is  no  defect  of  jurisdiction,  but  of  title.  It 

is  as  much  so  as  if  it  were  sought  to  dismiss  an  action  of 

ejectment  for  the  want  of  jurisdiction,  by  showing  that  the 

plaintiff  had  no  title  to  the  land  in  controversy.  At  common  law, 
neither  an  infant,  an  insane  person,  a married  woman,  alien 
enemy,  or  person  having  no  legal  interest  in  the  cause  of  action, 
can  maintain  a suit  in  his  or  her  own  name;  but  it  never  would 
be  contended  that  the  court  would  not  have  jurisdiction  to  in- 
quire whether  such  disability  in  fact  existed,  nor  that  the  case 
could  be  dismissed  on  motion  for  want  of  jurisdiction.  The 
right  to  bring  a suit  is  entirely  distinguishable  from  the  right 
to  prosecute  the  particular  bill.  One  goes  to  the  maintenance 
of  any  action ; the  other  to  the  maintenance  of  the  particular 
action.  Thus  it  was  held  in  the  case  of  Smith  vs.  McKay,  161 
U.  S.,  355,  and  Blythe  vs.  Hinckley,  173  U.  S.,  501,  that  it 
was  not  a question  of  the  jurisdiction  of  the  circuit  court  that 
the  action  should  have  been  brought  at  law  instead  of  in  equity.” 

I thank  the  court  for  the  attention  given  to  a much  longer  argu- 
ment than  I had  intended  to  make,  and  submit  the  case  in  so 
far  as  the  opening  upon  our  side  is  concerned. 

ARGUMENT  OF  HON.  JAMES  M.  BECK. 

If  the  Court  please: 

Mr.  Darlington  is  entirely  too  modest  in  the  conclusion  of  his, 
as  it  seems  to  me,  most  effective  argument,  in  speaking  of  it 
simply  as  an  opening.  In  point  of  fact,  it  will  be  the  main  argu- 
ment for  the  appellee  in  this  case.  Indeed,  I feel  the  greatest 
embarrassment  in  saying  anything,  and  only  do  so  because  of 
the  exceptional  importance  of  the  case,  an  importance  far  beyond 
the  immediate  litigants,  and  having  large  public  aspects,  which 
it  is  impossible  to  Jgnore,  even  though  we  would.  Therefore  I 
feel  constrained  to  say  a few  words  in  addition  to  what  Mr.  Dar- 
lington has  said,  although  I will  disclaim  at  the  very  threshold 
any  intention  whatever  to  go  over  the  legal  points  which  he  has 
so  fully  covered.  To  do  so  would  be  needlessly  to 
trespass  upon  both  the  time  and  the  patience  of  the  court.  If 
I pass  them  over,  it  will  not  be  because  I do  not  fully  agree  in 
Mr.  Darlington’s  contentions,  but  because  he  has  fully  discharged 
the  professional  duty  of  counsel  for  the  appellee  in  that  respect. 
As  to  the  purely  legal  side  of  the  case,  I am  therefore  very 
much  in  the  position  of  the  inconspicuous  member  of  Parliament 
who,  being  called  upon  to  follow  Edmund  Burke,  could  only 
feebly  ejaculate,  ‘T  say  ditto  to  Mr.  Burke.” 


110 


In  the  little  time  I shall  ask  the  attention  of  the  court  I shall 
only  refer  to  some  of  the  general  aspects  of  the  question,  especi- 
ally those  which  bear  upon  the  justice  of  what  has  been  done 
in  this  case.  And  that  brings  me  to  several  points  that  were 
suggested  in  the  opening  of  the  case  by  Judge  Parker. 

He  laid  very  much  emphasis  upon  the  fact  (as  though  it  were 
a fact,  and  if  a fact,  one  of  any  importance  in  the  ultimate  ad- 
judication of  this  cause)  that  this  case  was  not  brought  by  the 
United  States  Government,  but  by  a private  litigant ; and  the  im- 
plication, if  there  was  any  legitimate  implication,  was  that  because 
it  was  brought  by  a private  litigant,  it  had  less  claim  to  the 
careful  and  sober  consideration  of  the  court,  and  to  the  affirma- 
tion of  that  which  was  done  by  Judge  Wright.  In  the  first  place 
the  premise  is  faulty,  because  while  it  is  true  that  the  machinery 
of  the  court  has  been  put  in  motion  at  the  instance  of  a private 
litigant,  the  case  as  a matter  of  fact  is  most  fortunately  stripped 
of  all  aspects  that  make  it  a purely  private  controversy  between 
the  Bucks  Stove  & Range  Company  and  the  defendants  in  this 
proceeding.  ,The  complainant  could,  if  it  had  seen  fit  in  institut- 
ing this  contempt  proceeding,  have  asked  the  remedial  process 
of  the  court  to  compensate  it  for  that  which  the  record  plainly 
shows  to  be  the  great  damage  inflicted  upon  the  Bucks  Stove 
& Range  Company,  by  the  flagrant,  wanton  and  avowed  con- 
tempt of  the  process  of  the  Supreme  Court  of  the  District  of 
Columbia.  It  would  have  been  within  the  clear  legal  rights 
of  this  petitioner  in  this  proceeding,  to  have  asked  Mr.  Justice 
Wright  that  in  formulating  his  decree  he  should  embody  in  it  a 
provision  requiring  that  these  defendants,  before  they  could 
purge  themselves  of  contempt,  should  to  the  extent  of  their 
means  make  good  to  the  uttermost  penny  the  great  wrong  that 
they  have  done  by  this  great  conspiracy  against  the  rights  of  the 
Bucks  Stove  & Range  Company  to  enjoy  its  property,  and  the 
right  of  its  employees  to  enjoy  the  labor  of  their  hands  as  they 
saw  fit.  But  as  a matter  of  fact  the  petitioner  asks  nothing  of 
the  kind.  As  a matter  of  fact,  and  fortunately  in  view  of  the 
public  importance  that  this  case  has  assumed,  Mr.  Justice  Wright 
put  by  him  altogether  any  question  of  the  wrong  and  hardship 
to  this  petitioner,  and  treated  it  solely  and  exclusively  as  a case 
in  which  there  had  been  a deliberate  affront  to  the  court,  and 
an  avowed  defiance  of  its  authority  and  a deliberate  attempt  to 
obstruct  the  orderly  administration  of  justice  in  ways  not  recog- 
nized either  by  the  Constitution  or  the  laws  of  the  United  States. 
Therefore  while  in  the  first  instance  the  matter  was  brought  to 
the  attention  of  the  court  by  a private  litigant,  who  had  its  own 
private  wrong  and  its  own  individual  damage,  yet  as  a matter  of 
fact  from  the  time  that  we  filed  our  information,  the  matter 
ceased  to  be  a private  controversy,  and  became  in  the  largest  and 
most  important  way  a public  controversy,  in  which  the  real 
issue  at  stake  was  the  majesty  of  the  law,  and  the  question 
whether  the  so-called  court  of  last  resort  of  labor,  or  the  court 
recognized  by  the  laws  of  the  land,  was  to  prevail. 


Ill 


As  a matter  of  fact,  if  the  petitioner  had  had  any  idea  that 
the  proceeding  was  going  to  be  to  its  pecuniary  advantage,  it 
must  have  been  very  sadly  undeceived.  As  a matter  of  fact  I 
have  no  doubt  whatever  that  far  from  this  proceeding  doing 
the  Bucks  Stove  & Range  Company  any  substantial  good  in 
the  mere  matter  of  preventing  the  further  infliction  of  loss  and 
damage,  it  has  largely  failed  in  that  purpose.  Indeed  it  is  that 
circumstance  that  gives  this  case  surpassing  importance;  because 
in  every  other  case  of  which  I have  any  knowledge,  when  the 
chancellor  said  either  by  restraining  order  or  final  decree,  “Thou 
shalt  not ! Thus  far  and  no  further !”  there  was  loyal,  absolute 
obedience  to  the  decree  of  the  court,  and  property  rights,  and 
the  rights  of  other  workmen  than  those  who  are  members  of 
this  organization,  were  recognized,  and  the  course  of  law  went 
smoothly  on.  But  this  case,  it  seems  to  me,  marks  almost  the 
turning  point  in  the  history  of  labor  controversies  in  this 
country.  It  gives  it,  as  I said  before,  its  exceptional  impor- 
tance. In  this  case  the  decree  of  the  chancellor,  while  of  some 
avail,  is  largely  impotent,  because  before  the  chancellor  put 
his  pen  to  the  decree,  these  men,  employing  a power  vaster 
than  any  man  ever  employed  outside  the  machinery  of  the 
Government,  said  that  they  would  not  obey  it,  and  when  it 
was  signed  they  took  a most  effective  method  of  prevent- 
ing the  possibility  of  any  obedience  to  it  by  those  who  fol- 
lowed them  in  their  lawless  course.  Therefore,  we  have  this  real 
crisis  in  the  industrial  affairs  of  this  country,  as  well  as  in  the 
authority  of  the  courts;  because  it  affects  the  court  just  as  much 
as  it  affects  property  rights.  Therefore  we  have  this  crisis, 
of  the  chancellor’s  decree  being  nullified  by  an  organiza- 
tion which  stretches  from  the  Atlantic  to  the  Pacific,  which 
in  its  lawless  conspiracy  has  no  justification  or  warrant 
in  law,  which  even  declines  the  privilege  accorded  it  by  Con- 
gress to  be  incorporated,  and  to  have  some  responsibility  as  a 
corporate  entity.  I say  we  have  this  defiance  confronting  the 
court ; and  we  have  now  been  told  by  distinguished  counsel 
that  the  punishment  imposed  by  the  court  for  an  avowed  de- 
fiance of  the  decrees  of  this  court  is  to  be  treated  as  excessive 
and  as  the  reckless  action  of  a judge  whose  sense  of  judicial 
discretion  had  been  wholly  swept  away  by  personal  passion.  I 
am  coming  to  that  in  a few  moments,  because  it  would  be  unjust 
to  Mr.  Justice  Wright  if  something  were  not  said  of  the 
remarkable  criticisms  embodied  in  the  brief  which  Judge  Parker 
has  filed  in  this  court.  Therefore  I say  that  so  far  as  this 
private  litigant  bringing  this  proceeding  wholly  for  the  purpose 
of  benefitting  itself,  or  for  the  purpose  of  preventing  further 
harm  to  itself,  it  was  almost  as  impotent  in  accomplishing  its 
object  as,  for  example,  it  would  have  been  if  after  Marc  Antony 
had  lashed  the  mob  into,  fury  and  with  firebrands  they  were 
running  through  the  streets  of  Rome,  setting  fire  to  private  prop- 
erty in  every  direction,  the  chancellor  (if  there  had  been  a chan- 
cellor in  Rome)  had  served  a writ  of  injunction  upon  Marc 


112 


Antony  to  stop  instigating  his  followers  to  riot  and  trespass 
upon  property  rights. 

The  issue  here  is  the  authority  of  the  court,  not  merely  to 
make  a final  order,  but  as  I shall  presently  show  the  broader 
authority,  which  has  been  somewhat  lost  sight  of  in  the  argu- 
ment, the  authority  by  a preliminary  restraining  order  to  pre- 
serve the  status  quo  until  the  court  can  determine  by  orderly 
process  what  are  the  respective  rights  of  the  parties  litigant 
in  the  controversy ; because  as  I shall  presently  argue,  the  right  to 
preserve  the  status  quo  is  not  a right  which  is  to  be  disposed 
of  upon  the  same  narrow  grounds  as  the  right  to  make  a final 
decree.  The  chancellor  acts  in  the  exercise  of  different  power 
in  the  two  cases. 

Therefore,  this  suit  is  not  to  be  treated  as  a mere  private 
controversy.  It  is  to  be  treated  as  a public  suit  of  great  im- 
portance, in  which  the  litigant  simply  did  its  duty  to  the  court, 
a duty  from  which  the  property  sought  to  be  protected  could 
derive  little  personal  advantage,  but  a duty  which  it  thought 
and  its  counsel  thought  it  owed  to  the  judge  who  signed  this 
decree,  to  bring  to  the  attention  of  one  of  the  Justices  of  the 
Supreme  Court,  an  avowed,  flagrant  and  intentional  violation 
of  that  decree. 

Now  it  was  said  by  Judge  Parker  in  his  opening  that  one 
reason  for  special  consideration  to  the  defendants  in  this  pro- 
ceeding is  that  theirs  was  a following  and  a leadership  that 
was  simply  unsurpassed.  I quite  agree  with  the  premise,  but 
not  with  the  conclusion,  because  it  is  the  very  character  of  the 
following  and  the  leadership,  and  the  very  character  of  the  po- 
tent power  that  each  gave,  which  gave  significance  and  force 
to  utterances  and  actions  which,  had  they  been  those  of  an 
individual,  would  have  been  comparatively  unimportant. 

I had  occasion  to  refer  to  the  fact  in  the  argument  before 
Mr.  Justice  Wright,  and  I desire  to  refer  to  it  again,  that  in 
the  record  in  this  case  there  was  included  a document  in  which 
Mr.  Gompers  was  referred  to  as  the  “master  of  a million  minds.” 
Well,  as  the  men  in  buckram  in  King  Henry  grew  very  rapidly  in 
the  somewhat  heated  imagination  of  Falstaff,  so  the  one 
million  has  grown  in  Judge  Parker’s  imagination  to  three  mil- 
lions. The  fact  is  that  far  from  Mr.  Gompers’  acts  being  treated 
with  any  greater  leniency  and  consideration  because  he  is  the 
master  of  one  or  three  million  men,  who  follow  him  as  a leader, 
he  ought  to  have  known  that  the  law  would  exact  a greater  duty 
on  his  part  not  to  misuse  a power  so  remarkable  and  so  potent 
for  good  or  evil.  Thomas  Carlyle  once  said  that  the  very  words 
of  Luther  were  battles.  In  the  same  sense,  in  an  organization 
of  such  compact  and  concentrated  power  as  the  American  Fed- 
eration of  Labor,  Mr.  Gompers’  words  ceased  to  be  mere  words, 
and  became  deeds;  they  were  battles,  and  very  destructive  bat- 
tles at  that. 


113 


As  my  learned  friend,  Judge  Parker,  has  ventured  to  quote 
Dr.  Lyman  Abbott  as  a court  of  last  resort  to  reverse  Judge 
Wright,  I suppose  I can  quote  John  Stuart  Mill  as  certainly  no 
less  worthy  of  acceptance  in  this  court.  Said  Mr.  John  Stuart 
Mill  in  his  Essay  on  Liberty : 

“No  one  pretends  that  actions  should  be  as  free  as  opin- 
ions. On  the  contrary,  even  opinions  lose  their  impunity 
when  the  circumstances  in  which  they  are  expressed  are 
such  as  to  constitute  their  expression  a positive  instigation 
to  some  mischievous  act.  An  opinion  that  corndealers  are 
starvers  of  the  poor,  that  private  property  is  robbery,  ought 
to  be  unmolested  when  simply  circulated  through  the  press, 
but  may  justly  incur  punishment  when  delivered  orally  to 
an  excited  mob  assembled  before  the  house  of  a corn- 
dealer,  or  when  handed  to  the  same  mob  in  the  form  of  a 
placard.” 

I think  Mr.  Mill’s  distinction  between  the  potency  of  words, 
when  uttered  merely  as  a private  opinion,  and  the  effect  of  words 
when  they  are  the  means  of  carrying  out  some  unlawful  purpose, 
and  spoken  under  circumstances  that  inevitably  lead  to  lawless- 
ness, is  to  be  constantly  borne  in  mind  when  this  court  comes 
to  consider  this  record,  with  its  reiterated  story  of  expressions, 
which  divorced  entirely  from  Mr.  Gompers’  leadership,  divorced 
entirely  from  his  immense  following,  divorced  entirely  from  the 
conspiracy,  would  be  found  to  be  comparatively  unimportant. 
An  ordinary  individual  might  say,  “For  my  part  I am  not  going 
to  buy  a Loewe  hat,”  and  the  remark  would  have  no  significance 
at  all ; but  when  it  is  said  so  as  to  reach  the  ears  of  three  million 
men  and  carry  out  a conspiracy  that  had  been  found  to  exist, 
which  the  court  had  declared  unlawful  when  its  obvious  pur- 
pose was  to  continue  that  which  the  court  had  said  should 

stop,  then  the  words  are  not  merely  an  expression  of  Mr. 

Gompers’  individual  preference  for  a Dunlap  or  a Knox 
over  a Loewe  hat,  but  become  a potent  deed.  Words 

then  become  battles.  They  are  the  call  to  arms ; to  use  Mr. 

Justice  Robb’s  expression  in  his  opinion  in  this  case,  they  are 
“talismanic.”  Just  as  the  C.  Q.  D.  flashed  across  the  waters 
meant  as  much  as  if  a whole  volume  had  been  sent  out  from  the 
sinking  ship,  so  the  word  “unfair,”  in  itself  not  a very  offensive 
word,  or  “We  Don’t  Patronize,”  or  “I,  for  my  part,  will  not 
wear  a Loewe  hat,”  are  words  which  have  a defined  meaning  to 
Mr.  Gompers’  following  which  cannot  be  mistaken.  Their  pur- 
pose is  manifest,  and  their  result  inevitable.  In  such  a case,  just 
as  in  the  instance  given  by  Mr.  John  Stuart  Mill  in  the  extract 
that  I have  quoted,  words  become  actions,  and  to  say  that  they 
are  necessarily  protected  by  the  Constitution  of  the  United  States 
is  to  negative  the  rule  laid  down  by  Mr.  Justice  Holmes, 
speaking  for  the  Supreme  Court  of  the  United  States,  in  the 
case  of  Aikens  vs.  Wisconsin,  that  the  most  constitutionally  pro- 
tected of  all  acts  are  not  legally  protected  if  they  are  simply 
a means  whereby  some  unlaw  fill  purpose  is  about  to  be  carried 
out. 


114 


I was  about  to  say  something  with  reference  to  the  brief 
of  my  friend,  Judge  Parker,  a brief  which  is  a psychological 
study,  for  (he  will  pardon  me  for  saying  it)  it  illustrates  a fact 
of  which  I should  otherwise  have  been  somewhat  doubtful, 
that  is,  that  a very  good  lawyer  can  be  for  a number  of  years  a 
member  of  an  Appellate  Court,  and  acquire  the  judicial  habit 
of  looking  on  two  sides  of  a question,  and  then  can  step  from 
the  Bench,  and  apparently  for  the  time  being,  and  for  the 
exigencies  of  a case,  wholly  lose  the  power  to  see  both  sides 
of  a question.  At  all  events,  Judge  Parker,  in  his  argument, 
seems  to  have  tolerant  sympathy  for  everybody  in  this  case 
except  the  complainant  and  Mr.  Justice  Wright.  If  Mr.  Gom- 
pers,  for  example,  consigns  the  court  to  perdition  by  a 
profane  expression,  it  is  simply  “wanting  somewhat  in  re- 
spect” ; but  when  Mr.  Justice  Wright,  indignant  as  I think 
any  fair-minded  man  would  be  at  the  unfairness,  cowardice 
and  brutality  of  the  potent  leaders  of  two  million  men  making  war 
upon  one  man,  with  whom  they  have  no  legitimate  war  whatever, 
then  the  words  become  the  words  of  “torrential  passion  which  ut- 
terly unfits  for  the  exercise  of  judicial  discretion.”  I am  reading 
just  a few  sentences  of  this  part  of  the  brief.  Judge  Parker  says: 
“It  must  be  that  the  decree  was  written  by  his  Honor  immediately 
after  he  had  written  his  opinion.  I am  unable  to  persuade  myself 
that  he  could  have  imposed  so  extraordinary  a sentence  in  his 
calm  moments,  and  except  in  the  excited  condition  which  accord- 
ing to  psychological  laws  necessarily  resulted  from  the  heated 
condition  of  mind  which  is  apparent  from  the  reading  of  the 
opinion.” 

Then  a little  further  on  he  says : 

“What  wonder  then  that  a mind  so  inflamed  as  must  have 
been  his  which  produced  these  heated  declarations,  this  fervid 
declamation,  should  have  become  unfitted  for  judicial  calmness, 
and  the  exercise  of  judicial  discretion,  and  should  have  in  the 
course  of  its  torrential  flow  swept  before  it  and  made  a wreck  of 
all  precedents — ” 

By  the  way  the  precedents  that  were  made  a wreck  of  were 
conspicuous  by  their  absence  either  in  Judge  Parker’s  brief  or 
oral  argument — 

“and  culminated  in  this  harsh,  cruel,  unusual  and  unprece- 
dented sentence,  which  can  be  productive  of  no  possible  good,” 
etc. 

Then,  after  referring  to  the  entire  willingness  of  these  gen- 
tlemen to  accept  the  halo  of  martyrs,  he  goes  on  to  say  that  if 
these  men  are  punished  “it  will  be  simply  and  only  because  they 
have  dared  to  use  their  pens  and  to  lift  up  their  voices  in  protest 
against  what  they,  and  many  jurists,  and  statesmen  and  civilians 
in  other,  the  highest  walks  of  life,  deem  an  invasion  of  a right, 
without  which  there  cannot  long  exist  government  by  the  people 
and  for  the  people,  and  the  octopus  of  aggregated  wealth  and 


115 


judicial  tyranny  as  its  efficient  ally  would  crush  out  every  as- 
piration of  labor  to  rise  above  the  plane  of  hewers  of  cisterns  and 
drawers  of  water;  and  then  indeed  would  those  who  bear  the 
heat  and  brunt  of  the  day  in  the  great  field  of  labor,  their  wives 
and  children,  be  left  naked,  defenseless,  and  undone  to  the  tyrant 
of  Greed,  whose  cry,  like  that  of  the  horse  leech’s  daughter, 
is  always  and  forever  more.” 

That  is  the  language  of  an  ex-Chief  Judge  of  a great  Appel- 
late Court,  criticizing  the  language  of  a Judge  of  this  Court. 
Then  he  goes  on  to  what  I am  about  to  say  is  his  definition 
of  what  is  liberty  and  not  license.  Having  laid  down  the  prin- 
ciple that  a man  can  say  and  write  just  what  he  pleases,  only 
subject  to  a suit  for  damages  or  a criminal  prosecution  by  in- 
dictment and  a trial  by  a jury,  he  then  baldly  states  the  proposi- 
tion as  follows : 

“Subject  only  to  this  liability  any  citizen  or  association  of 
citizens  may  assail  and  traduce  any  other  person  or  association 
(for  whatever  purpose  associated)  'in  the  severest  and  even  vil- 
est terms  and  without  a shadow  of  excuse.  * * * so  long 

as  I and  those  who  join  me  go  not  beyond  the  expression  of  sen- 
timent and  opinion.” 

If  that  means  anything,  it  means  that  if  Mr.  Samuel  Compers, 
instead  of  contenting  himself  with  impotently  spitting  at  the 
Supreme  Court  of  this  District  through  the  columns  of  the 
American  Federationist,  had  led  a mob  of  men  into  the  court 
room  of  Mr.  Justice  Wright,  and  had  applied  to  him  language 
that  was  applied  in  the  columns  of  the  Federationist  to  Judge 
Gould,  then  there  could  be  nothing  whatever  done  except  to 
indict  him  and  give  him  a trial  by  the  jury,  with  the  uncertainties 
of  a trial  by  jury,  or  allow  Mr.  Justice  Wright  to  sue  the  partic- 
ular man  and  his  followers,  who  thus  crowded  his  court  and 
insulted  his  dignity,  in  a suit  for  damages ; in  other  words,  that 
the  judge  would  have  to  leave  his  ermine  on  the  Bench  and  step 
down  into  the  arena,  and  litigate  with  those  men,  who  mocked 
at  the  court  and  insulted  its  majesty  in  a suit  for  damages,  or 
by  a prosecution  in  the  criminal  court,  the  question  whether  such 
words  were  with  propriety  addressed  to  him. 

When  a very  capable  and  able  lawyer  like  Judge  Parker  can 
advance  such  propositions  and  put  them  soberly  into  print, 
it  is  not  surprising  that  his  clients  have  a conception  of  the 
liberty  of  free  speech  that  I do  not  think  is  generally  shared 
by  the  profession  or  by  the  Bench  in  this  country.  If  it  should 
be,  there  would  be  an  end  to  law  and  order  in  this  country. 

Another  very  remarkable  fact  is  the  attempt  to  cloud  this  whole 
issue  by  extraneous  considerations  which  have,  and  ought  to  have, 
no  bearing  or  influence  with  this  court.  I mean,  for  example,  the 
statements  made  by  Judge  Parker  in  his  opening  that  it  was  not 
only  important  that  the  judgment  of  this  court  should  be  just, 
but  that  it  should  seem  just.  At  first  that  seems  very  plausible, 


116 


but  it  is  altogether  wrong,  as  a matter  of  fact.  To  support  his 
statement  to  which  I am  coming  presently,  we  have  in  the  ap- 
pendix to  his  brief  Dr.  Lyman  Abbott’s  editorial  in  the  Out- 
look, which  doubtless  is  interesting  to  the  readers  of  the  Out- 
look, but  of  very  little  importance  to  the  courts  or  lawyers  of  this 
country.  Secondly,  we  are  also  told  that  Mr.  Gompers  and  Mr. 
Mitchell  went  to  the  banquet  of  the  Civic  Federation  in  New 
York,  and  that  there  very  pleasant  words  were  said  by  Mr. 
Low  in  introducing  Mr.  Mitchell,  and  that  Mr.  Carnegie  also 
said  something  very  pleasant;  and  then  it  is  said  that  Mr.  Gom- 
pers said  this  of  himself,  and  therefore  it  ought  to  be  accepted : 
“I  have  been  brought  up  to  have  a rather  high  conception  of 
Americanism,  of  American  ideals  and  of  American  fair  play ; to 
fight  your  battles  fair  and  square,  and  then  even  for  a time  to 
honestly  and  faithfully  yielding  and  abiding  by  the  results.” 

Of  course  I will  not  stop  to  say  that  the  unanimous  opinion 
of  the  Bench  of  this  country  is  that  the  boycott — Mr.  Gompers’ 
chief  weapon — is  a cold-blooded,  cowardly,  brutal  and  malicious 
conspiracy,  that  it  has  nothing  to  commend  it  either  in  law  or 
morals ; and  that  inasmuch  as  the  boycott  is  the  chief  weapon 
and  the  great  purpose  of  the  organization  of  which  Mr.  Gompers 
is  the  very  effective  head,  that  fact  with  its  long  record  of  some 
hundreds  of  successful  boycotts,  contrasts  very  strangely  with 
this  declaration  of  love  for  American  ideals  and  fair  play;  but 
be  that  as  it  may,  I was  about  to  suggest  that  whether  or  not  the 
banquet  of  the  Civic  Federation  gives  the  defendants  any  better 
standing  in  this  court,  it  is  wholly  apart  from  the  purpose 
whether  what  your  Honors  do  or  whether  what  Mr.  Justice 
Wright  did  seems  just  to  the  public  or  not.  Of  course,  if  it  were  a 
matter  of  any  importance  it  might  be  very  easy  to  contrast 
with  Dr.  Lyman  Abbott’s  editorial,  other  editorial  expressions 
which  are  to  the  contrary,  but  I think  it  would  be  un- 
worthy of  the  case  to  do  so.  Mr.  Justice  Creswell  of 
the  English  Bench  was  once  charging  the  jury.  In  the 
midst  of  the  charge  he  said  something  that  appealed  to  the 
popular  ear  and  there  was  a ripple  of  applause.  The  Justice 
at  once  stopped  the  applause  as  an  insult  to  the  court,  and  said : 
“The  cause  of  justice  is  in  very  great  danger  when  the  applause 
of  a court  room  is  agreeable  to  a judge’s  ear.”  In  the  same 
way  I think  it  is  true  that  it  would  be  a very  great  mistake  for 
the  court,  whether  the  court  of  first  instance  or  the  Appellate 
Court,  to  have  any  regard  except  for  the  law  and  the  justice  of 
the  case,  wholly  without  consideration  to  what  interpretation  the 
public  may  or  may  not  put  upon  it.  Having  said  that  much,  to 
what  does  the  case  reduce  itself? 

Mr.  Darlington  has,  I think,  demonstrated  to  this  court  be- 
yond question,  that  these  gentlemen,  in  the  teeth  of  our  protest, 
in  the  teeth  of  our  willingness  to  open  the  judgment  imposed  be- 
low, to  enable  them  to  get  a bill  of  exceptions,  have  deliberately 
refused  the  only  method  of  bringing  before  the  court  any  legal 
questions.  The  testimony  in  the  case  by  a bill  of  exceptions  is 


117 


not  here.  What  reason  they  had  for  disregarding  that  which  is 
the  plain  decision  of  the  Supreme  Court,  that  this  matter  could 
only  be  heard  by  writ  of  error  and  then  on  bill  of  exceptions, 
I know  not.  Of  course  the  mere  fact  that  it  is  now  called  under 
the  code  an  appeal  does  not  strip  the  appeal  of  its  essential  char- 
acter as  a common  law  writ. 

What  is  there  before  your  Honors?  Simply  the  petition,  the 
return,  and  the  judgment  of  the  court.  With  respect  to  the 
judgment  of  the  court  so  far  as  the  petition  is  con- 
cerned, it  can  not  be  said  that  this  judgment  could  be  reversed  on 
that  account.  The  proceedings,  the  answer,  the  return,  admitted 
everything  that  we  charged  against  the  defendants  except  the 
intent  with  which  it  was  done.  Of  course  there  would  be  no 
possibility  of  reversing  the  judgment  on  that  account.  It  comes 
then  to  the  proposition  whether  or  not,  without  any  bill  of 
exceptions,  there  is  anything  on  the  face  of  this  record  that  would 
justify  this  court  in  setting  aside  that  whjch  was  done  by  Mr. 
Justice  Wright  in  the  court  below?  In  that  connection,  I want  to 
call  your  Honors’  attention  to  this  fact:  Mr.  Justice  Wright 
specifically  found  certain  facts,  and  among  these  facts  was  the 
following:  Having  recited  these  various  infractions  of  the  pre- 
liminary injunction,  all  of  them  subsequent  to  the  time  it  became 
effective — 

Mr.  Justice  Van  Orsdel : Assuming  that  your  proposition  is 
correct,  that  this  case  should  have  come  here  on  error,  and  there 
is  no  bill  of  exceptions  before  us,  and  we  have  nothing  to  .con- 
sider in  order  to  determine  whether  there  was  an  error  of  law 
but  the  pleadings  and  the  judgment,  do  you  contend  that  we  are 
precluded  from  looking  into  the  findings  made  by  Justice  Wright, 
and  also  the  opinions  delivered  by  Mr.  Justice  Wright,  to  ascer- 
tain how  he  arrived  at  this  judgment? 

Mr.  Beck:  I think  so  far  as  the  decree  is  concerned,  you  are 
certainly  entitled  to  look  at  the  findings  of  facts  with  respect  to 
it,  but  if  there  be  any  portion  of  the  decree  to  sustain  the 
sentence,  it  seems  to  me  it  is  precisely  like  the  case  of  an  at- 
tempt to  reverse  a conviction  on  an  indictment  of  fifty  counts,  in 
which  some  counts  are  good  and  some  faulty. 

Mr.  Justice  Van  Orsdel:  What  do  you  think  of  our  right  to 
look  into  the  opinion? 

Mr.  Beck : That  is  something  of  which  I have  not  thought 
particularly,  but  personally  I would  have  no  objection  at  all  to 
the  court  looking  at  anything  that  Judge  Wright  had  said  with 
respect  to  it. 

Mr.  Justice  Van  Orsdel:  That  was  a question  that  arose  in 
my  mind. 

Mr.  Beck : I do  not  think  there  is  any  lack  of  harmony  be- 
tween the  two. 


118 


The  Chief  Justice:  It  might  be  a material  question  in  case 
we  should  find  that  the  case  ought  to  be  brought  up  by  a bill  of 
exceptions,  in  the  nature  of  a special  finding  by  the  court,  of  the 
facts  on  which  he  based  the  decree. 

Mr.  Beck:  Of  course  the  opinion  is  not  in  any  sense  a finding 
of  facts.  The  opinion  is  simply  the  expression  of  the  court, 
giving  his  reasoning  through  which  he  makes  a specific  decree. 
The  decree  is  the  specific  finding  of  facts. 

The  Chief  Justice:  In  order  to  determine  the  question  of 
whether  a thing  has  been  adjudicated,  we  are  frequently  forced 
to  look  at  the  findings  of  the  court,  or  the  instructions  of  the 
court,  as  to  whether  certain  facts  were  taken  into  consideration 
or  not. 

Mr.  Beck : The  only  point  I am  making  is  this : I think 
that  so  far  as  specific  violations  of  the  injunctions  for  which  this 
punishment  was  imposed  are  concerned,  your  Honors  ought  to 
look  only  to  the  judgment,  because  the  judgment  had  for  its  pur- 
pose the  specification  of  the  grounds  upon  which  the  sentence 
was  imposed.  Of  course  the  opinion  contains  allusions  to  many 
other  facts  in  the  record  that  were  evidential,  that  were  part  of 
the  reasoning  by  which  the  judgment  was  reached,  but  not  the 
offenses  for  which  the  punishment  was  imposed.  For  instance, 
all  that  took  place  before  the  injunction  became  effective  were 
facts  that  went  to  animus  and  intent  and  aggravation.  Of  course 
the  court  in  imposing  sentence  had  to  look  over  the  whole  record, 
and  determine  how  far  this  was  an  aggravated,  intentional  viola- 
tion of  law,  and  how  far  it  was  an  honest  mistake  or  misappre- 
hension without  any  deliberate  intent  to  affront  the  majesty  of 
the  court.  But  the  reasoning,  that  gives  aggravation  or  mitigation 
to  the  sentence,  I do  not  think  is  before  the  court  for  the  purpose 
of  determining  the  validity  of  the  judgment,  because  it  only  goes 
to  the  quantum  of  punishment,  with  which  I apprehend  this  court 
really  has  nothing  to  do.  The  judgment  specifically  finds  the 
truth  of  certain  facts,  and  also  certain  paragraphs  of  the  peti- 
tion, by  reference.  The  last  of  these  is  26,  and  I want  to  call 
your  Honors’  attention  to  one  clause  of  26.  Having  recited  the 
decree,  the  court  says : 

“Yet,  by  the  acts,  means,  devices  and  subterfuges  afore- 
said—” 

“Aforesaid”  are  the  preceding  paragraphs.  I am  now  reading 
the  26th  paragraph  of  the  petition,  which  the  court  has  found  to 
be  true  — 

“the  said  Samuel  Gompers,  Frank  Morrison  and  John  Mitchell 
have  designed  and  sought  to  continue  in  force  and  effect,  and 
have  continued  in  force  and  effect,  in  wilful  disregard,  violation, 
disobedience  and  contempt  of  the  aforesaid  order  and  decree  of 
this  court,  the  boycott  against  petitioner  and  the  conspiracy 
recited  in  the  bill  to  destroy  its  business  which  they  and  the  other 


119 


defendants  have  been  and  are,  by  the  said  order  and  decree,  re- 
strained and  enjoined  from  continuing.” 

All  that  is  said  in  the  previous  part  of  this  judgment  must 
be'  read  in  connection  with  that  statement ; in  other  words,  these 
declarations  of  Mr.  Gompers  and  these  acts  of  Mr.  Mitchell, 
like  his  submitting  the  resolution  to  continue  the  boycott  to  the 
United  Iron  Workers,  etc.,  were  the  devices,  the  means  and  the 
subterfuges  by  which  these  respondents  sought  to  continue  in 
full  force  and  effect,  boycotts  which  had  been  preliminarily  re- 
strained by  an  unreversed  decree  of  the  court,  as  to  which  there 
was  not  even  a supersedeas  allowed. 

The  first  thing  I want  to  suggest  to  the  court  is  whether  or  not 
the  things  for  which  they  have  been  punished  are  not  within  even 
the  modified  decree.  I do  not  say  that  it  is  necessary  that  they 
should  be,  but  I say  are  they  not  as  a matter  of  fact?  The  sub- 
stantial criticism  that  this  court  by  a majority  made  with  refer- 
ence to  the  final  decree  below  was  that  it  enjoined  certain  acts, 
without  reference  to  the  fact  whether  they  were  or  were  not  “in 
furtherance  of  the  boycott.”  If  you  could,  from  the  face  of  this 
judgment,  determine  that  these  men  had  been  sentenced  for  acts 
which  they  did  not  do  in  furtherance  of  any  boycott,  then,  of 
course,  the  court,  if  you  have  any  power  collaterally  to  attack 
this  injunction,  could  say,  “This  is  not  within  the  modi- 
fied decree.”  I am  now  leaving  aside  for  the  moment  the 
question  suggested  and  argued  by  Mr.  Darlington,  as  to  whether 
they  could  defy  even  an  erroneous  decree,  if  the  court  had  general 
jurisdiction.  But  the  trouble  is  that  you  can  not  find  in  this 
judgment,  with  its  specifications  of  facts  upon  which  these  men 
were  adjudged  guilty  of  contempt,  that  anything  they  did  was 
not  “in  furtherance  of  the  boycott” ; and  I assert,  the  court  has 
specifically  found  that  each  and  every  action  and  each  and  every 
statement,  and  each  and  every  printed  sentence,  were  “in  fur- 
therance and  with  the  design  and  purpose  of  continuing  this 
boycott”  against  the  petitioner. 

So  the  first  argument  I shall  address  to  your  Honors  is  that 
even  if  you  have  the  right  to  measure  the  justice  of  what  was  done 
in  the  court  below  by  your  modified  decree,  yet  nevertheless  it 
is  within  the  modified  decree  because  every  essential  fact  is 
found  by  the  court ; and  such  findings  of  fact  are  conclusive  in 
this  tribunal  with  or  without  a bill  of  exceptions.  You  have  a 
specific  finding  of  facts  that  all  of  them  were  in  “furtherance 
of  the  boycott.” 

But  suppose  I am  wrong  in  that.  These  men  were  punished 
for  doing  these  acts  in  violation  of  a preliminary  injunction.  This 
court  has  not  said  yet  that  this  preliminary  injunction  was  in  ex- 
cess of  the  power  of  the  court.  It  has  not  passed  on  the  ques- 
tion. This  question  has  not  been  before  this  court.  What  your 
Honors  said  was  that  the  final  decree  was,  as  a matter  of  fact, 
too  broad  in  certain  respects,  in  not  including  the  sentence  “in 
furtherance  of  the  boycott”  and  other  minor  details  not  essential 
to  this  argument. 


120 


Mr.  Justice  Van  Orsdel : Was  not  the  final  decree  an  exact 
copy  of  the  preliminary? 

Mr.  Beck : Practically  so. 

Mr.  Justice  Van  Orsdel:  Is  it  not  before  us  in  these  two  rec- 
ords? 

Mr.  Beck : Oh,  yes. 

Mr.  Davenport : They  are  both  in  the  petition. 

Mr.  Beck:  I am  conceding  that  outside  of  minor  and  un- 
essential variance,  the  two  decrees  were  the  same;  but  does  it 
follow  at  all  that  because  the  final  decree  was  modified  by  a 
majority  of  the  court,  that  the  other  decree  has  not  the  full 
force  of  law?  I say  it  does  not  follow  for  two  reasons.  The 
power  of  the  court  to  exercise  its  great  prerogative  of  preserving 
the  status  quo  is  a very  different  power  than  the  power  to  finally 
decree.  The  best  illustration  of  that  is  this : It  is  the 
highest  and  most  palpable  error  for  a court  to  enter  a 
final  decree  without  hearing  the  other  party.  It  is  vital 
to  our  institutions  that  no  man  shall  have  a final  decree  entered 
against  him  until  he  has  had  his  day  in  court  and  been  heard. 
But  as  to  a restraining  order  that  is  not  so.  It  is  the  immemorial 
prerogative  of  the  chancellor,  that  even  this  great  funda- 
mental principle  of  our  institutions  that  no  man  shall  have  any 
order  entered  against  him  until  he  is  heard,  does  not  apply  to  that 
which  is  absolutely  essential  to  equity  jurisprudence,  namely,  the 
right  of  a .chancellor  upon  an  ex  parte  statement  of  one  litigant, 
when  he  sees  that  the  thing  in  controversy  might  be  wholly  de- 
stroyed pending  litigation,  and  his  power  to  do  justice  finally  be 
defeated  unless  he  stays  the  hand  of  the  other  party  until  he  can 
hear  the  cause,  to  preserve  the  status  quo.  So  that  great 
prerogative  right  of  the  chancellor  is  much  broader  than 
the  power  to  enter  a final  decree.  This  must  be  so.  The 
Judiciary  Act  of  1789  was  passed  at  a time  when  the 
equity  powers  were  not  so  necessary,  because  our  society 
was  a great  deal  less  complicated,  and  combinations  were 
not  such  a deadly  menace  as  they  are  today.  Under  that  Judi- 
ciary Act  of  1789,  no  injunction  could  be  issued  without  notice 
to  the  other  side;  but  in  1872  the  necessities  of  civilization  re- 
quired a different  rule,  and  whatever  may  be  said  of  Congress 
in  recent  years,  it  has  steadfastly  refused  to  change  the  rule  that 
it  made  in  1872.  That  rule  was  (I  can  not  quote  the  exact  lan- 
guage, but  your  Honors  know  it)  that  there  could  be  a restrain- 
ing order  entered  without  notice,  whenever  to  the  chancellor  there 
was  reasonable  apprehension  of  irreparable  harm  to  the  litigant. 
In  this  case  these  respondents  are  before  the  court  in  part,  al- 
though I can  not  candidly  say  wholly,  for  the  violation  of  the 
preliminary  injunction;  not  wholly  so,  because  the  final  order 
punishes  them  for  disobeying  both  the  preliminary  and  the  final 
decree.  But  after  all  it  does  not  really  matter  which  they  did, 
for  the  purpose  of  imposing  punishment,  because  the  affront  to 
the  court  is  quite  as  important,  whether  done  on  one  occasion 


121 


or  two.  But  the  preliminary  injunction  in  this  case  was  issued 
by  Judge  Gould  to  preserve  the  status  quo.  Now,  it  often  hap- 
pens that  for  the  time  being  the  court  must  temporarily  prejudge 
a controversy,  prejudge  the  very  question  at  issue,  in  order  to  do 
ultimate  justice  at  all,  because  otherwise  the  thing  in  controversy 
may  be  utterly  destroyed.  For  instance,  you  take  the  very  re- 
cent case  in  the  Supreme  Court  of  the  United  States,  of  the 
United  States  vs.  Shipp,  where  a man  had  been  convicted  in  Ten- 
nessee of  an  unspeakable  crime,  and  he  had  been  sentenced  by 
the  State  courts  to  be  hanged.  He  sued  out  a habeas  corpus  in 
the  Circuit  Court  of  the  United  States.  The  Circuit  Court  of 
the  United  States  held  that  it  had  no  jurisdiction,  and  dismissed 
the  petition.  He  then  went  to  Mr.  Justice  Harlan  and  got  the 
allowance  of  an  appeal  to  the  Supreme  Court  of  the  United 
States.  Thereupon,  Judge  Harlan  remanded  the  man  to  the 
custody  of  the  sheriff  of  the  Tennessee  County,  with  instructions 
to  keep  him  until  the  Supreme  Court  could  determine  whether 
it  had  jurisdiction.  You  will  observe  that  the  interference  of  the 
Supreme  Court  was  an  interference  which  temporarily  assumed 
the  very  point  in  question,  namely,  whether  it  had  jurisdiction  to 
hear  the  controversy  at  all.  But  the  court  had  to  do  that,  other- 
wise no  justice  could  be  done.  The  result  is  they  said,  “True  the 
Circuit  Court  of  the  United  States  below  says  it  and  no  United 
States  court  has  any  jurisdiction.  If  it  has  none,  we  have  none  by 
way  of  appeal.  Yet  we  will  preserve  the  status  quo,  namely,  the 
life  of  this  prisoner,  until  we  can  pass  upon  this  question;”  and 
when,  through  the  connivance  of  the  sheriff,  and  a mob,  the  man 
was  lynched,  and  contempt  proceedings  were  instituted  in  the  Su- 
preme Court,  Mr.  Justice  Harlan  rendered  an  opinion  in  which 
he  said  in  answer  to  the  objection  that  was  made  that  there  was 
no  jurisdiction  of  the  Supreme  Court  to  issue  the  order,  and 
that  there  could  be  no  contempt  of  an  order  for  which  there  was 
no  constitutional  or  other  authority,  the  Supreme  Court  said,  “No. 
True  we  might  not  have  had  jurisdiction  to  have  allowed  this 
writ,  but  we  had  a right  to  say  so,  and  until  we  said  so  we  had  a 
right  to  preserve  the  status  quo ; because  if  you  hang  this  man 
first,  it  was  idle  for  us  afterwards  to  determine  whether  we  had 
jurisdiction  and  whether  in  the  courts  of  Tennessee  he  had  a fair 
trial  or  not.” 

It  is  precisely  so  here.  Here  is  a preliminary  injunction  grant- 
ed to  preserve  the  status  quo,  and  to  prevent  these  men  from 
doing  something  which  they  claim  they  had  a right  to  do,  and 
which  Mr.  Justice  Gould  did  not  say  they  did  not  have  the  right 
to  do,  but  which,  if  they  went  on  and  did  it  before  the  decision, 
the  Bucks  Stove  & Range  Company  might  have  been  in  the  hands 
of  a receiver.  Mr.  Justice  Gould  said:  “True,  I must  temporarily 
assume  the  very  point  at  issue,  but  I am  going  to  stay  your  hand 
until  I have  the  opportunity  to  determine  whether  you  have  a 
right  to  do  it.”  Therefore  this  injunction  was  issued. 

I wish  to  call  the  attention  of  the  court  to  the  fact  that 
if  I get  a voidable  decree  and  the  other  side  does  not  appeal, 


122 


and  no  step  is  taken  to  correct  it,  my  right  in  what  I have  ob- 
tained in  the  due  course  of  law  is  mine,  whether  the  thing  is 
voidable  or  not.  So  here  these  defendants  could  have  brought 
an  appeal  from  that  interlocutory  injunction,  or  that  preliminary 
injunction.  They  did  make  a motion  to  modify  it.  It  was  de- 
nied, and  they  took  no  exception  to  it.  They  did  not  take  any 
appeal  from  it.  This  court  never  passed  upon  it.  It  did  pass 
upon  the  final  decree,  but  never  upon  the  preliminary  decree. 
Therefore  we  have  a sentence  imposed  for  a defiance  by  these 
men  of  a preliminary  order,  which  this  court  has  neither  modified 
nor  reversed,  and  which  was  not  appealed  from  in  order  to  de- 
termine its  validity.  It  seems  to  me  the  judge  who  granted  it,  in 
the  absence  of  a reversal  as  to  that  decree,  had  a right  to  punish 
for  contempt,  and  this  petitioner  has  property  rights  in  that  de- 
cree, even  if  it  were  voidable. 

But  after  all  it  is  not  important  for  this  court  to  determine 
either  of  those  contentions.  I will  not  go  over  Mr.  Darlington’s 
argument.  I can  not  anticipate  what  impression  it  has  made  upon 
the  court,  but  to  me  it  seems  unanswerable.  Certainly  it  is  un- 
answerable if  the  weight  of  authority  is  to  be  followed,  and  the 
fact  remains  unassailable  that  until  the  decree  of  a court,  which 
certainly  had  jurisdiction  of  the  subject  matter,  concededly  had 
jurisdiction  both  of  the  subject  matter  and  the  parties,  was  re- 
versed in  the  orderly  course  of  judicial  proceeding,  it  was  a de- 
cree which  was  the  law  of  the  land,  and  pro  tempore  it  was  the 
law  of  the  land,  and  had  to  be  obeyed  as  such.  Now  that  law 
is  very  old.  The  decision  as  cited  by  Mr.  Darlington  substan- 
tiates that.  But  let  me  simply  refer  to  the  language  of  Mr. 
Chief  Justice  Marshall  in  ex  parte  Watkins,  3 Peters,  193,  in 
which  he  says  the  cases  are  numerous  which  decide  that  the  judg- 
ments of  a court  of  record,  having  shown  “general  jurisdiction” 
of  the  subject,  although  erroneous,  are  binding  until  reversed. 

Now,  of  course,  to  that  proposition  there  does  not  seem  to  be 
any  serious  dissent,  but  the  question  arises  wholly  on  what  is 
the  meaning  of  having  “general  jurisdiction.” 

When  a court  commits  error,  it  acts  in  excess  of  its  authority. 
If  it  did  not,  it  would  not  be  in  error;  and  when  it  acts 
in  excess  of  its  authority,  it  is  in  a minor  and  vague  and 
general  sense  lacking  jurisdiction.  But  within  the  mean- 
ing of  this  rule  as  announced  by  the  great  Chief  Justice,  lack  of 
jurisdiction  is  lack  of  fundamental  jurisdiction,  or  general  juris- 
diction of  the  subject  matter  and  of  the  parties.  And  I think  a 
great  deal  of  the  confusion  that  has  arisen  in  some  of  the  decisions 
in  some  of  the  States,  and  perhaps  the  difference  that  apparently 
existed  between  Mr.  Darlington  and  possibly  one  member  of  the 
court  in  his  suggestions,  is  the  fact  that  we  have  been  using  “juris- 
diction” in  two  different  senses,  one  in  its  fundamental,  constitu- 
tional sense,  which  is  one  thing,  and  the  other  in  a lesser  sense, 
which  is  really  not  fundamental  jurisdiction,  but  which  simply 
has  reference  to  exercise  of  authority  in  a matter  that  is  inciden- 


123 


tal  to  a general  cause.  For  example,  take  stockholders’  suits : 
It  has  been  held  by  the  Supreme  Court  of  the  United  States  that 
even  if  a man  brings  suit  in  behalf  of  a corporation  without  con- 
sulting the  corporation,  notwithstanding  that  Rule  94  says  he 
can  not  do  it,  and  notwithstanding  the  fact  that  he  has  no  com- 
mon law  or  equitable  right  to  sue  for  the  corporation,  except 
upon  conditions  that  equity  may  prescribe — the  Supreme  Court 
says  that  the  question  is  not  so  fundamental  and  jurisdictional 
that  he  can  go  to  the  Supreme  Court  under  the  Act  of  1891.  In 
other  words,  it  is  not  jurisdictional  in  any  fundamental  sense 
whatever,  but  simply  goes  to  the  propriety  of  equitable  relief. 
So  there  are  many  uses  of  the  word  “jurisdiction”  in  connection 
with  the  exercise  of  authority,  that  are  to  be  sharply  differen- 
tiated from  the  use  of  the  word  “jurisdiction”  in  the  sense 
in  which  Chief  Justice  Marshall  has  used  it  in  this  particular  sen- 
tence, and  as  it  has  been  used  in  the  cases  cited  by  Mr.  Darling- 
ton. 

Can  it  be  disputed  for  one  moment  that  Mr.  Justice  Gould 
had  jurisdiction  of  this  bill  in  equity  by  the  Bucks  Stove 
Company  against  these  respondents?  They  never  disputed  it. 
They  never  suggested  in  their  answers  that  they  were  not  prop- 
erly before  the  court,  that  they  were  not  suable  in  the  District  of 
Columbia.  They  never  suggested  by  demurrer  that  the  bill 
be  dismissed,  and  no  proceeding  was  taken  of  that  kind,  except  I 
should  say  in  frankness  that  there  was  a suggestion  as  to  whether 
the  American  Federation  of  Labor  could  be  sued  as  though  it 
were  an  entity.  But  to  the  extent  of  these  individual  defendants, 
the  jurisdiction  of  the  court  was  never  challenged,  and  the  right 
of  the  court  to  adjudicate  the  quarrel  between  these  individuals 
and  the  petitioner  is  a right  which  has  never  been  disputed  at  any 
stage  of  the  proceedings.  The  Court  may  have  made  the  pre- 
liminary injunction  too  broad.  We  do  not  concede  this  but 
urge  the  contrary;  but  suppose  it  did?  Its  error  may  be  very 
grave.  It  may  be  an  error  in  the  misapplication  of  the  Consti- 
tution of  the  United  States,  but  that  does  not  make  it  any  the 
less  a mere  error,  that  does  not  go  to  its  jurisdiction  in  the  funda- 
mental sense,  but  simply  goes  to  the  propriety  of  what  the  court 
has  actually  done.  In  that  sense  I think  Mr.  Chief  Justice  Mar- 
shall used  the  word  “erroneous,”  and  in  that  sense  it  is  abso- 
lutely true  that  when  Mr.  Justice  Gould  entered  his  restraining 
order,  whether  that  order  violated  the  Constitution  of  the  United 
States  or  not,  that  Constitution  had  prescribed  its  method,  med- 
iately or  immediately,  directly  or  indirectly,  of  reversing  that 
order,  and  until  it  was  reversed  it  was  the  law  of  the  land,  and 
as  such  every  man  had  to  obey  it  with  all  the  loyalty  due  to  the 
decrees  of  a court.  And  especially  I repeat  is  that  true  where 
the  order  was  of  that  preliminary  character  that  had  no  other 
purpose  than  to  preserve  the  status  quo  so  that  final  justice 
should  be  done. 

Without  attempting  to  discuss  the  many  interesting  questions 
that  the  case  suggests,  because  it  is  idle  to  go  over  ground  that 


124 


has  been  so  fully  covered,  I was  about  to  say  that  this  implicit 
obedience  to  an  order,  even  if  it  be  erroneous,  emphasizes  that 
which  is  to  me  the  serious  question  in  this  whole  case,  and  that  is, 
that  this  is  not  an  ordinary  contempt  proceeding.  It  arises  to  the 
dignity  of  a clash  between  two  tribunals,  one  constituted  by  law 
and  the  other  constituted  by  individuals,  for  which  the  law  has  no 
recognition  whatever.  Let  me  read  what  Mr.  Gompers,  with  his 
effectiveness  of  expression,  has  said.  In  discussing  in  one  of  the 
annual  meetings  of  the  American  Federation  of  Labor  the  duty 
of  obedience  to  what  the  executive  committee  or  executive  coun- 
cil of  that  board  direct  in  the  interim  between  annual  conventions, 
and  then  speaking  of  the  inferior  affiliated  bodies,  he  says : 

“They  are  not  only  the  local  municipal  council  of  industry, 
dealing  with  sociological  problems,  but  they  are  also  the  con- 
crete power  to  enforce  and  execute  within  the  jurisdiction  of 
their  existence,  the  judgment  of  the  highest  court  in  the  realms 
of  labor  of  America,  the  American  Federation  of  Labor.  When, 
however,  the  final  word  has  been  spoken  by  the  court  of  last 
resort  of  labor,  composed  of  the  representatives  of  the  intelligent 
organized 'wage  earners  of  America,”  etc. 

Now,  it  might  be  suggested  that  this  had  no  reference  to  a clash 
between  the  court  of  last  resort  of  labor  and  the  courts  of  the 
country,  and  I say  in  candor  that  when  the  words  were  penned 
such  a conflict  may  not  have  been  in  the  mind  of  the  author  of 
/hat  statement,  but  their  significance  was  precisely  that,  for  not- 
withstanding the  ample  recognition  by  the  American  Federation 
of  Labor  that  the  courts  of  this  country  had  declared  the  boy- 
cott illegal,  the  American  Federation  had,  in  large  characters  in 
their  constitution,  made  it  their  great  end ; they  had  concentrated 
the  power  over  the  boycott  in  their  executive  council,  so  as  to 
make  it  an  exceedingly  potent  power,  and  then,  as  Mr.  Justice 
Robb  in  his  opinion  says,  they  had  unseated  the  delegates  of  one 
whole  constituent  body  because  this  one  particular  body  had  re- 
fused to  obey  a boycott  when  it  had  been  ordered  by  “the  highest 
court  in  the  realms  of  labor  of  America.” 

And  in  that  connection  let  me  read  a sentence  from  one  of  Mr. 
Gompers’  annual  reports,  which  is  also  quoted  in  Mr.  Justice 
Robb’s , opinion,  because  it  has  so  effective  a bearing  upon  Judge 
Parker’s  statement  in  his  brief  which  I will  now  quote.  Speak- 
ing  of  Mr.  Gompers  and  Mr.  Mitchell,  Judge  Parker  says : 
“Whose  voices  and  pens  have  been  lifted  and  used  continually 
and  uniformly  and  only  in  the  conservation  of  good  will  and 
kindly  relation  between  capital  and  labor.” 

Let  me  read  as  against  the  eloquent  eulogium  of  counsel 
what  the  American  Federation  of  Labor,  both  by  the  address  of 
its  president,  Mr.  Gompers,  and  in  his  annual  report  of  the  Com- 
mittee on  Boycotts,  said : 

“We  must  recognize  the  fact  that  the  boycott  means  war,  and 
to  successfully  carry  on  a war  we  must  adopt  the  tactics  that 

/ 125 


history  has  shown  are  most  successful  in  war.  The  greatest 
master  of  war  said  that  war  was  the  trade  of  a barbarian, 
and  the  secret  of  success  was  to  concentrate  all  your  forces  upon 
one  point  of  the  enemy,  the  weakest,  if  possible.” 

This  is  the  voice  of  one  who  loves  fair  play,  to  concentrate  all 
your  forces  on  the  weakest.  In  other  words,  the  very  things 
that  stand  out  in  this  record  above  all  others  are  that  here  is  a 
power,  according  to  Judge  Parker,  of  three  million  men,  con- 
centrated in  some  eleven  men  of  the  executive  councd.  To 
what  they  order  with  respect  to  the  boycott  there  must  be  im- 
plicit obedience.  Otherwise  a man  is  liable  to  be  thrown  out  of 
the  American  Federation,  and  possibly  his  whole  constituent 
body  be  deprived  of  its  charter.  And  quite  frequently  they  use 
their  power  not  merely  against  the  liberty  of  the  employer,  but  of 
the  far  greater  number  of  working  men  who  are  not  enamored  of 
this  particular  form  of  trades  unionism.  Their  purpose  is  to  con- 
centrate the  vast  potential  power  of  this  mighty  army,  an  army 
greater  than  was  ever  put  into  the  field  of  battle  by  any  general 
or  monarch  in  the  known  history  of  the  world  (unless  we  credit 
the  ridiculous  exaggeration  as  to  the  size  of  Xerxes’  army) 
upon  one  man  at  a time,  or  at  the  most  three,  as  to  any  form  of 
industry,  and  these  chosen  victims  are  to  be  ground  to  powder 
until  they  submit  to  the  inevitable.  That  is  a criminal  conspiracy 
which  has  been  denounced  by  men  eminent  in  public  life  as  well 
as  by  every  court  that  has  ever  had  occasion  to  speak  upon  the 
subject. 

Therefore  this  record  presents  the  clear  and  sharp  issue  of 
industrial  liberty  as  against  industrial  slavery.  It  is  appalling  to 
think  of  the  consequences  that  would  result  if  these  respondents 
leave  this  court  or  any  court  in  this  country  with  the  conviction 
that  they  can  defy  the  decrees  of  the  court  of  equity  with  impun- 
ity. Because  if  so,  the  chancellor  is  absolutely  valueless  in  any 
future  case  arising  out  of  a criminal  or  unlawful  boycott, 
especially  where  the  boycott  is  national  in  its  character 
and  scope.  These  respondents  have  stripped  themselves 
of  any  pretense  of  wanting  to  obey  this  decree.  Their 
contention  is  not  the  contention  of  their  learned  counsel ; 
there  is  the  widest  discrepancy  between  the  two.  Their  counsel 
say  that  these  gentlemen  never  intended  to  violate  the  law ; but 
these  gentlemen  upon  their  statements,  as  set  forth  in  this  record 
and  admitted  by  them,  said  openly,  frequently  and  emphatically, 
said  it  in  mass-meetings,  said  it  in  print  circulated  by  the  thou- 
sands and  thousands  of  copies,  before  the  injunction  was  granted, 
that  they  would  not  obey  it,  using  the  most  profane  and  dis-  j 
respectful  expressions  with  respect  to  the  court ; and  after  it  was  i 
granted  they  refused  to  obey  it.  To  continue  the  boycott  it  did 
not  require  a proclamation  such  as  Napoleon  issued  to  his  sol- 
diers. It  did  not  require  a long-winded  statement  from  Mr. 
Gompers  to  the  effect  that  “this  injunction  has  been  granted,  | 
pay  no  attention  to  it,  go  ahead.”  All  he  had  to  do  was  ta  i 


126 


j say  what  he  would  do  and  the  rest  would  follow.  Therefore; 
these  expressions,  as  I said  in  opening,  in  themselves  seemingly 
innocent,  become  battles,  become  a proclamation  at  least  of  bat- 
tles, because  they  had  an  ascertained  and  inevitable  significance 
to  these  people,  as  to  their  duty  to  the  great  national  organiation, 
to  which  they  were  parties.  The  proof  of  the  pudding  is  in  the 
eating ; because  we  know  what  did  occur  subsequent  to  these  writ- 
ten and  printed  utterances  of  Mr.  Gompers. 

The  Chief  Justice  : Now  what  did  occur,  aside  from  what  they 
published  and  said,  what  did  occur  toward  the  furthering  of 
this  boycott  ? What  did  they  do  ? Was  there  any  overt  act 
proved,  by  any  of  these  people,  similar  to  those  that  were  going 
on  before  the  preliminary  injunction? 

Mr.  Beck:  The  overt  acts  were  these:  Mr.  Gompers  went 
from  one  end  of  the  country  to  the  other,  preaching  in  mass 
meetings,  using  words  that  could  have  only  one  legitimate  import, 
and  that  was  that  the  boycott  should  go  on  and  would  go  on,  all 
the  injunctions  to  the  contrary  notwithstanding. 

The  Chief  Justice : Suppose  nobody  paid  any  attention  to 
those  remarks? 

Mr.  Beck:  As  a matter  of  fact  they  did,  but  it  is  a matter 
of  no  importance  whether  anybody  paid  any  attention  to  them  or 
not.  The  question  of  disobedience  of  the  order  is  the  important 
thing. 

The  Chief  Justice : It  might  be  of  considerable  importance  for 
example  in  this  way : Suppose  an  expression  was  equivocal  in 
its  meaning,  a remark  addressed  to  a person.  If  that  person 
goes  off  and  does  a thing  that  is  seemingly  an  execution  of  one 
of  its  meanings,  from  that  we  might  presume  very  strongly  that 
that  was  the  intention  of  the  party,  that  they  were  both  acting 
on  that  understanding ; but  if  it  was  addressed  to  another,  to 
whom  it  did  not  appeal  in  that  way,  the  court  might  well  find 
that  it  was  strong  evidence  of  an  intention  that  a particular  re- 
mark should  be  accepted  as  having  a particular  meaning. 

Mr.  Beck:  Undoubtedly,  if  your  Honors  had  any  power  to 
leexamine  the  facts.  I submit,  however,  that  if  you  have  not  with- 
out a bill  of  exceptions,  then  it  would  be  of  little  evidential 
value. . Even  if  you  have  the  power  to  reexamine  the  facts, 
the  evidence  is  here.  This  company  did  a business  of  $1,200,000 
previous  to  this  action  of  these  respondents  and  after  that  it  did 
a business  of  $600,000.  Then  we  have  specific  instances  proved 
which  I think  are  not  hearsay,  because  they  belong  to  that  pecu- 
liar class  of  cases  where  the  things  said  are  the  res  gestae,  it 
is  a part  of  what  took  place;  it  is  what  took  place  after  these 
incendiary  proclamations  were  issued. 

. Right  in  that  connection  I wish  the  time  permitted  but 
it  is  not  important,  because  the  judge  did  not  base  his 


127 


decision  on  that,  it  would  be  most  interesting  to  discuss 
the  question  whether,  before  an  injunction  becomes  effective 
a man  can  start  in  operation  a chain  of  consequences  which 
he  knows  will  inevitably  continue  after  the  injunction  be- 
comes effective.  In  other  words,  to  use  an  illustration 
that  I used  before  Judge  Wright,  if  I know  that  the 
chancellor  is  about  to  sign  a decree  forbidding  me  to  destroy 
a certain  building  that  I want  to  get  out  of  the  way,  and  I have 
a time  fuse,  if  I light  it  just  before  the  decree  is  signed,  and 
the  explosion  takes  place  after  the  decree  is  signed,  destroying 
the  building,  can  I be  allowed  to  say,  “Why,  I did  nothing  except 
before  the  decree  was  signed”  ? The  fact  of  the  matter  was  that 
when  they  rushed  out  this  edition  ahead  of  its  proper  date  of 
publication,  they  were  setting  into  operation  a chain  of  circum- 
stances which  they  knew  they  could  never  wholly  recall,  and 
which  they  knew  would  inevitably  defeat  to  some  extent  the  very 
purpose  of  the  injunction.  But  that  point  is  not  before  the  court, 
because  Judge  Wright  was  very  careful  not  to  base  his  decision 
upon  anything  that  was  done  before  the  injunction  was  effective, 
except  to  the  extent  that  it  was  evidential  in  showing  malice 
and  intent,  and  except  to  the  extent  that  it  went  to  the  aggrava- 
tion or  mitigation  in  that  which  was  his  exclusive  prerogative, 
namely,  the  determination  of  the  quantum  of  punishment.  They 
were  not  punished  for  the  substantive  violations  of  the  injunc- 
tion, for  anything  that  was  done  before  that  order  became  effec- 

tive.  , 

I was  diverted  somewhat  in  thinking  of  that  matter  of  the 
injunction,  in  speaking  of  this  power  concentrated  in  the  Ameri- 
can Federation  of  Labor,  and  all  that  it  implies.  It  may  be,  and 
I am  perfectly  willing  as  a matter  of  charity,  to  assume  that  these 
gentlemen  have  motives  that  are  sufficient  to  them.  Un- 
fortunately, the  courts  have  determined  otherwise.  Per- 
sonally, so  far  as  the  attorneys  of  the  petitioner  are  con- 
cerned, we  never  suggested  to  Judge  Wright  in  any  way  what 
his  punishment  should  be.  We  permitted  our  client  as  a litigant 
to  drop  out  of  the  controversy,  because  we  felt  there  was  a 
much  larger  issue  than  any  remedy  to  the  petitioner.  It  was 
purely  a question  of  what  the  court  should  do  in  its  own  vindi- 
cation; and  the  court,  having  due  regard  for  the  monstrous 
character  of  the  conspiracy,  to  which  there  is  no  fitting  parallel 
in  the  records  of  this  country,  imposed  a sentence  which  is  often 
imposed  for  the  most  venial  offenses  committed  in  the  District 
of  Columbia. 

A great  deal  has  been  said  about  the  sentences.  We 
are  referred  to  the  statutes  of  states  which  provide  that 
thirty  or  sixty  days,  or  six  months,  shall  be  the  limit  of  such 
sentence.  What  is  sufficient  for  the  states  is  a question  for 
the  states  to  determine.  But  even  if  that  could  be  taken  as  a 
measure  of  what  is  or  is  not  judicial  discretion,  the  answer  is, 
sufficient  that  that  which  is  done  within  the  borders  of  one 
state  is  not  comparable  to  that  which  is  done  from  the  Atlantic 

128 


to  the  Pacific  and  from  the  Lakes  to  the  Gulf,  a conspiracy 
extending  to  every  corner  of  this  land,  and  strangling  not  merely 
interstate  commerce,  but  strangling  individual  enterprise  and  the 
right  of  the  individual  to  work  in  various  parts  of  the  country. 

Mr.  Justice^  Robb:  They  were  not  punished — this  was  not 
a punishment,  was  it? 

Mr.  Beck:  Well,  it  was  only  a punishment  to  the  extent  of 
a vindication  of  the  authority  of  the  court.  Of  course  if  your 
Honor  understood  me  to  imply  that  the  punishment . was  to  be 
proportionate  to  the  magnitude  of  the  conspiracy  to  boycott, 
why,  I want  to  disclaim  that  intention.  What  I do  say  is  that 
it  is  one  thing  for  John  Smith  to  say  a workman  belonging  to 
one  of  these  constituent  unions,  in  a little  local  controversy, 
violating  a decree  of  the  court,  and  it  is  quite  another  thing, 
and  a vastly  different  thing,  when  the  “master  of  a million 
minds,”  having  repeatedly  avowed  his  contempt  for  the  court, 
having  previously  consigned  it  to  perdition,  having  previously 
said  that  he  would  go  on  and  do  that  which  he  pretended  to 
think  he  had  the  right  to  do,  “all  the  fool  injunctions  to  the 
contrary  notwithstanding,”  when  that  man  sets  an  example  of 
lawless  defiance  to  the  court  and  puts  into  operation  a chain  of 
circumstances  which  are  absolutely  beyond  his  recall,  and  makes 
it  absolutely  impossible  for  this  or  any  court  to  do  justice.  To 
say  under  those  circumstances  that  the  punishment  in  this  case 
is  so  excessive  as  to  be  a violation  of  judicial  discretion,  seems 
to  me  almost  to  border  on  the  ludicrous. 

I want  to  say  that  Judge  Parker’s  eulogium  of  two  of  his 
clients,  with  respect  to  the  fact  of  their  disclaimer  before  the 
court  of  any  intention  to  violate  these  orders,  notwithstanding 
the  fact  that  elsewhere  they  had  freely  claimed  their  purpose 
to  do  that  very  thing,  is  rather  remarkable  in  view  of  this 
record,  because  there  are  certain  circumstances  which  might  well 
justify  a judge  of  less  intense  temperament  than  Mr.  Justice 
Wright  in  expressing  his  just  indignation.  It  reminds  me  very 
much  of  what  I saw  in  today’s  Washington  Post.  One  of  the 
ladies  of  the  D.  A.  R.  told  a story  of  a traveling  evangelist  who 
had  painted  on  one  end  of  his  wagon  the  words,  “God  is  Love,”- 
and  at  the  other  end  of  the  wagon  the  words,  “Our  dog  has  all  his 
teeth.”  So  with  these  expressions  of  loyalty  when  haled  before  the 
court  for  contempt,  as  compared  with  the  most  positive  and. 
profane  expressions  of  disloyalty  elsewhere.  Their  reconciliation1 
is  impossible.  As  a matter  of  fact  I ought  to  say,  in  justice  to 

Mr.  Gompers,  that  he  disclaims  the  word  in  the  “ ” when 

he  said,  “Go  to with  your  injunctions,”'  He  says  he  simply 

indulged  in  his  love  of  classical  literature,  and  what  he  really 
meant  was,  “Go  to  with  your  injunctions.”  He  would  have  us 
believe  that  it  was  an  expression  of  Elizabethan  English  that 
came  to  him  in  the  watches  of  the  night,  and  he  thought  it  was 
just  as  Shakespeare  would  have  said  it  and  therefore  he  simply 
said,  “Go  to  with  your  injunctions.”  Well,  I do  not  know  that 


129 


that  would  strip  it  of  its  contempt,  but  it  does  give  some  pause 
to  any  judge  as  to  the  weight  to  be  given  to  his  other  disclaimers 
when  he  gravely  tells  the  court  that  he  did  not  mean  what  he 
himself  anticipated  everybody  else  would  understand  him  to 
mean  by  the  expression  to  which  I have  referred.  In  the  same 
way,  when  they  filed  their  answer  in  this  case,  they  deliber- 
ately stated  that  they  not  only  did  not  put  these  people  on  the 
unfair  list,  but  had  no  intention  of  doing  it,  although  three 
different  numbers  of  the  Federationist  filed  in  this  court  had 
these  men  on  the  unfair  list.  So  it  comes  down  to  this  propo- 
sition, whether  a court  whose  credulity  has  been  somewhat 
shocked,  whose  decree  has  been  defied,  whose  authority  has  been 
insulted,  which  has  been  the  object  of  scorn,  so  far  as  these 
gentlemen  could  make  a judge  of  a court  of  the  United  States 
an  object  of  scorn  among  a law-abiding  people  like  the  Ameri- 
can people — whether  such  men  are  entitled  to  any  special  con- 
sideration in  an  appellate  court  when  they  ignore  the  only  way 
by  which  they  could  bring  these  questions  of  law  before  the 
court. 

Let  me  just  say  in  conclusion  that  there  never  was  a case  in 
which  there  ought  to  be  less  objection  to  an  injunction 
proceeding  than  the  present  case.  With  the  single  exception  of 
the  absence  of  trial  by  jury,  every  single  criticism  that  has  ever 
been  preferred  by  one  element  of  labor  with  respect  to  injunctions 
and  contempt  proceedings,  is  absent  in  this  case.  We  filed  our 
bill  in  August,  1907.  We  never  asked  for  a preliminary  injunc- 
tion until  the  following  November.  We  did  not  ask  for  it  upon 
ex  parte  statements,  but  we  took  testimony  to  a very  considerable 
extent.  The  court  after  hearing  arguments,  and  hearing  all  that 
the  other  side  had  to  say,  took  a full  month  to  decide  it,  because 
December  16th  was  the  time  when  the  judge  rendered  his  opinion 
that  this  boycott  was  illegal,  and  the  injunction  was  issued,  and 
he  prescribed  the  very  form  of  the  injunction.  Did  we  then 
rush  into  court  quickly  and  claim  that  the  injunction  was  vio- 
lated? Although  that  injunction  became  operative  December 
23d,  we,  as  counsel  for  our  client,  stood  with  a patience  that 
was,  if  anything,  unjust  to  our  client — stood  this  open  and  delib- 
erate and  avowed  violation  of  this  injunction  of  December  23, 
1907,  until  the  late  summer  of  1908. 

Mr.  Darlington,  Mr.  Davenport  and  I not  only  owed  a duty 
to  our  client,  but  an  even  greater  duty  to  the  court  that  had 
at  our  instance  entered  this  decree.  Nevertheless,  at  the  possible 
sacrifice  of  the  interests  of  our  client,  .we  stood  by  until  patience 
fully  ceased  to  be  a virtue,  and  we  never  applied  for  an  attach- 
ment in  contempt  proceedings  from  December  23,  1907,  until 
some  time  in  August,  1908. 

And  then  did  the  judge  act  in  haste?  Did  he  hale  these 
people  to  the  bar  of  the  court  and  give  them  no  chance  or  oppor- 
tunity to  be  heard?  On  the  contrary,  we  took  testimony  for 
months  in  different  parts  of  the  country,  set  forth  in  this  vol- 


130 


uminous  record.  And  when  that  was  done,  did  this  judge  at 
once  pronounce  judgment  upon  these  men?  Did  he  without  ar- 
gument, without  consideration,  in  a fit  of  choler  and  passion, 
as  intimated  in  Judge  Parker’s  brief,  at  once  render  judgment? 
Why,  on  the  contrary,  for  a full  month  he  reserved  his  judg- 
ment. We  argued  the  case  November  16,  and  it  was  not  decided 
until  the  middle  of  the  following  month,  I think  December  23. 
Then  he  rendered  an  opinion  which,  if  it  were  somewhat  intense 
in  expression,  was  fully  justified  by  the  character  of  the  record. 
But  whether  it  was  or  was  not,  they  were  not  words  spoken  in  a 
fit  of  choler  or  anger  or  resentment.  They  were  words  that  he 
had  carefully  written  out,  giving  his  reasons,  giving  the  facts* 
substantiating  them  by  reference  to  the  record,  and  then  he 
waited  and  asked  these  gentlemen,  before  he  imposed  any  sen- 
tence, what  they  had  to  say.  What  did  they  do  then?  My  friend 
has  gone  so  out  of  the  record  that  I may  be  pardoned  when  I 
allude  to  the  fact  that  before -ever  Judge  Wright  could  pronounce 
his  sentence  they  announced  that  they  would  not  pay  any  fine,  that 
they  wanted  to  go  to  jail  and  would  go  to  jail  in  order  that  they 
might  be  made  martyrs.  Did  they  say,  “We  thought  we  were 
doing  right;  we  are  very  sorry,  we  will  now  obey  the  decree 
of  the  court,  we  regret  what  has  been  done”?  There  was  not 
a word  of  apology  for  the  violation  of  the  injunction  nor  for  the 
disrespect  to  this  court. 

I think,  therefore,  for  this  court  to  reverse  this  judgment, 
would  be  to  “crucify  justice  afresh,  and  put  it  to  an  open  shame.” 


ARGUMENT  OF  JACKSON  H.  RALSTON,  ESQ. 

The  first  question  to  which  it  seems  necessary  to  address  myself 
briefly  will  be  the  question  of  the  jurisdiction  of  this  court  under 
this  record. 

It  is  strenuously  urged  that  this  court  should  not  pass  upon 
this  case,  for  the  want  of  a bill  of  exceptions.  The  first  sugges- 
tion, for  the  want  of  a writ  of  error,  seems  to  have  been  aban- 
doned. Now,  our  own  theory  of  the  case,  considering  it  as  a 
matter  of  adjudicated  law,  is  sufficiently  illustrated  by  Bessette 
vs.  Conkey  Company,  which  has  been  referred  to  by  Mr.  Dar- 
lington, and  I will  read  a few  lines  from  the  opinion  of  Mr. 
Justice  Brewer.  Commenting  upon  the  two  classes  of  injunctions 
he  says : 

“Doubtless  the  distinction  referred  to  in  .this  quotation  is  the 
cause  in  the  difference  in  the  rulings  of  various  state  courts  as  to 
the  right  of  review.  Manifestly  if  one  inside  a court  room  dis- 
turbs the  order  of  proceedings,  or  is  guilty  of  personal  miscon- 
duct in  the  presence  of  the  court,  such  action  may  properly  be 
regarded  as  a contempt  of  court,  yet  it  is  not  misconduct 
in  which  any  individual  suitor  is  specially  interested.  It  is 


131 


more  like  an  ordinary  crime  which  affects  the  public  at  large, 
and  the  criminal  nature  of  the  act  is  the  dominant  feature.  On 
the  other  hand,  if  in  the  progress  of  a suit  a party  is  ordered 
by  the  court  to  abstain  from  some  action  which  is  injurious  to 
the  rights  of  the  adverse  party — ” 

Which  is  the  case  here,  and  this  is  the  language  which  seems 
to  us  to  become  appropriate  to  the  present  case — 

“and  he  disobeys  that  order,  he  may  also  be  guilty  of  contempt. 
But  the  personal  injury  to  the  party  in  whose  favor  the  court 
has  made  the  order  gives  a remedial  character  to  the  contempt 
proceeding.  The  punishment  is  to  secure  to  the  adverse  party 
the  right  which  the  court  has  awarded  to  him.  He  is  the  one 
primarily  interested,  and  if  it  should  turn  out  on  appeal  from 
the  final  decree  of  the  case,  that  the  order  was  erroneous,  there 
would  in  most  cases  be  the  great  propriety  of  setting  aside  the 
judgment  which  was  imposed  for  disobeying  an  order  to  which 
the  adverse  party  was  not  entitled.” 

He  states  that  it  is  often  difficult  to  distinguish  between  the 
two  classes ; and  passing  the  paragraph  in  which  he  elaborates 
that  idea,  and  which  is  not  for  the  moment  necessary,  he  says : 

“In  the  case  at  bar  the  controversy  between  the  parties  to 
the  suit  was  settled  by  final  decree,  and  from  that  decree,  so  far 
as  appears,  no  appeal  was  taken.  An  appeal  from  it  would  not 
have  brought  up  the  proceeding  against  the  petitioner,  for  he 
was  not  a party  to  the  suit.” 

Now  that,  if  your  Honors  please,  was  the  situation  in  the 
Bissette  case  and  in  the  Christiansen  case,  decided  a little  later 
in  this  same  volume,  the  condition  of  affairs  in  case  in  162  Fed. 
which  has  been  cited,  and  in  every  one  of  the  cases  upon  the 
brief  put  in  here  by  Mr.  Davenport  except  one,  and  that  under- 
takes to  apply  the  law  as  to  writs  of  error  between  parties  who 
are  not  parties  to  the  suit,  to  a case  where  the  only  persons 
restrained  are  the  parties  themselves  to  the  action,  and  it  does 
it  with  mere  reference  to  those  cases,  which  do  not  decide  what 
that  case  quotes  them  as  deciding,  and  with  a complete  ignoring 
of  the  qualifying  words  which  I have  read,  and-  which  are  care- 
fully repeated  in  the  subsequent  decision  in  this  volume,  by  Mr. 
Chief  Justice  Fuller  and  repeated  in  other  decisions.  Now,  I 
think  I speak  with  exact  correctness  when  I say  that  is  the  only 
case  which  has  been  decided  where  a writ  of  error  was  employed 
or  allowed  when  the  person  offending  was  a party  to  the  suit 
itself.  That  was  a case  decided  in  the  United  States  Circuit  Court 
of  Appeals  in  another  jurisdiction.  Now  the  relative  condition 
of  affairs  as  between  other  jurisdictions  where  this  question  may 
have  arisen  and  here  is  very  decisive. 

Mr.  Davenport:  In  re  Christiansen  completes  Bissette  vs. 
Conkey. 


132 


Mr.  Ralston:  I beg  your  pardon  upon  that  point.  In  re 
Christiansen  draws  the  distinction  and  points  out  that  in  two  or 
three  previous  decisions  of  the  United  States  courts,  in  the  Hayes 
and  Fisher  case,  in  which  the  City  of  New  Orleans  was  involved, 
and  in  other  cases  the  distinction  was  made.  In  a case  the  name 
of  which  slips  my  mind  for  the  moment — in  one  of  those  cases 
at  least,  the  matter  came  up  on  appeal  to  the  Supreme  Court 
of  the  United  States,  where  only  the  parties  involved  in  the 
original  suit  were  the  parties  involved  in  the  contempt  proceeding, 
and  the  court  there  held  that  the  judgment  of  the  court  was 
remedial,  being  between  the  parties,  and  entertained  an  appeal, 
and  reversed  the  principal  decision,  and  as  a matter  of  fact  the 
decision  in  contempt  fell  at  the  same  time. 

Now,  there  I say  is  the  distinction  which  is  pointed  out,  and 
the  only  possible  line  of  difference  there  can  be,  and  the  only 
possible  criticism  that  can  be  made  upon  the  suggestion  I am 
now  making  to  the  court  is  that  in  several  of  those  cases  the 
court  adjudicated  a fine  in  favor  of  the  plaintiff  in  the  case. 
But  the  fine  was  not  the  determinative  feature  of  the  case.  It 
did  not  govern  it  in  its  principle,  as  is  plainly  manifested  in  the 
Bessette  case.  It  makes  no  difference  whether  it  be  fine  or 
imprisonment,  so  long  as  it  is  imposed  for  the  purpose  of 
rendering  effective  the  relief  which  the  court  has  sought  to  give, 
and  which  it  appears  or  which  it  is  claimed  has  been  ineffectually 
done.  As  I say,  if  in  the  course  of  the  suit  the  party  is  ordered 
to  abstain  from  some  action  which  is  injurious  to  the  rights  of 
the  other  party,  and  he  disobeys  that  order,  he  may  be  guilty 
of  contempt;  but  the  personal  injury  to  the  party  in  whose 
favor  the  court  has  made  the  order  gives  the  remedial  character. 
It  is  not  the  particular  order  or  sentence,  whether  it  be  imprison- 
ment or  a fine  to  the  benefit  of  the  party  injured,  but  the  remedial 
character  to  the  party  affected.  The  situation  is  not  as  it  was  in 
the  Bessette  case  and  as  it  was  in  other  cases  of  parties  who  have 
come  in  and  interfered  in  the  action,  with  notice  of  the  existence 
of  an  injunction.  There  was  a direct  attack  upon  the  power  of 
the  court,  and  there  the  relief  was  exclusively  by  writ  of  error. 

Now,  if  your  Honors  please,  the  matter  is  not  a new  question 
in  practice  before  this  court.  The  cases  have  come  up  both  ways 
, before  this  court;  and  where  there  was  a contempt  committed 
in  the  presence  of  the  court,  against  the  immediate  authority  of 
the  court,  in  which  an  outsider  had  no  interest,  in  those  cases 
it  has  come  up  in  two  ways,  either  by  writ  of  error,  I think  in 
one  case  in  the  Police  Court,  or  on  bill  of  exceptions,  or  by 
habeas  corpus.  But  it  has  come  up  twice  at  least  in  equity. 
In  one  of  those  cases  I myself  was  concerned  as  counsel  in  the 
court  below,  a case  which  two  of  your  Honors  at  least  will 
recall,  having  been  upon  the  Bench  at  the  time.  No,  I believe 
only  Judge  Shepard  was  on  the  Bench  at  the  time.  That  was 
the  case  of  Drew  vs.  Hobart.  That  was  a case  of  a church 
fight,  between  factions  in  a church.  An  injunction  had  been 


133 


granted,  as  it  happened,  on  behalf  of  my  client,  granted  in  fact 
before  I was  in  the  case.  The  injunction  was  granted  and  after- 
ward served  upon  the  parties,  and  subsequently  they  were  in 
contempt,  and  so  held  by  Mr.  Justice  Stafford.  A hearing  was 
had  before  him.  A number  of  witnesses  were  heard,  their  testi- 
mony taken  down;  no  bill  of  exceptions,  nothing  of  the  kind, 
but  taken  down  as  an  ordinary  equity  record.  That  case  came 
before  this  court  on  appeal.  I was  out  of  this  country  at  the 
time  it  came  before  the  court,  and  my  clients  were  not  repre- 
sented. In  fact,  at  that  time  they  had  no  further  interest  prac- 
tically in  the  case.  This  court  considered  the  question  thoroughly, 
found  that  the  order  had  been  inadvertently  issued  below,  that 
a bond  had  not  been  filed  before  the  issuance  of  the  preliminary 
order,  and  that  the  order  therefore  had  to  be  set  aside,  and 
they  were  discharged  from  their  contempt;  because  the  court 
below,  as  this  court  held,  had  no  jurisdiction  to  issue  the  order 
in  the  premises. 

The  other  case  is  that  of  Lane  vs.  Lane,  where  a man  was 
committed  to  jail  for  contempt,  in  27  D.  C.,  for  failing  to  obey 
an  order  declaring  him  in  arrears  in  alimony.  A rule  to  show 
cause  had  been  served,  and  he  submitted  affidavits.  The  case 
was  considered  upon  affidavits,  decided  against  him,  he  was  sent 
to  jail,  an  appeal  was  taken  to  this  court,  and  the  action  of  the 
court  below  was  affirmed.  So  that  we  have  two  practical  illus- 
trations of  practical  precedents  in  this  court. 

The  Chief  Justice:  This  question  was  not  raised  in  those 
cases. 

Mr.  Ralston:  No;  no  suggestion  was  raised  that  this  court 
did  not  have  a perfect  right  to  act  under  such  circumstances. 

Now  the  jurisdiction  governing  matters  of  appeals  in  this  Dis- 
trict is  strikingly  different  from  the  legislation  governing  appeals 
to  the  various  circuit  courts  of  appeal  throughout  the  United 
States.  The  language  here  is  that  any  final  order,  judgment  or  de- 
cree may  be  appealed  from  to  this  court.  The  language  is  simple 
and  direct.  An  appeal  is  allowable  from  any  final  order,  and  as  we 
know  from  certain  interlocutory  orders.  Now,  when  we  turn  to 
the  circuit  courts  of  appeal  throughout  the  United  States  we  find 
the  legislation  is  entirely  different.  I speak  from  memory,  but 
I think  with  practical  accuracy,  and  we  find  there  that  the  lan- 
guage is  substantially  this,  that  the  final  orders  of  the  District 
courts  my  be  reviewed  by  appeal,  writ  of  error,  or  otherwise, 
making  a clear,  clean  distinction  between  various  classes,  whereas 
here,  as  I say,  everything  goes  up  simply  on  appeal.  I will  call 
your  Honors’  attention  to  Section  226  of  the  District  Code,  which 
I know  you  are  thoroughly  familiar  with : 

“Any  party  aggrieved  by  any  final  order,  judgment,  or  decree 
of  the  Supreme  Court  of  the  District  of  Columbia,  or  of  any 
justice  thereof,  including  any  final  order  or  judgment  in  case 


134 


heard  on  appeal  from  a justice  of  the  peace,  may  appeal 
therefrom  to  the  said  court  of  appeals ; and  upon  such  appeal 
the  court  of  appeals  shall  review  such  order,  judgment  or  de- 
cree, and  affirm,  reverse,  or  modify  the  same  as  shall  be  just,  ex- 
cept as  provided  in  the  following  sections.” 

And  one  of  the  following  sections  refers  to  a different  * form 
of  bringing  questions  before  this  court  pertaining  to  the  police 
court. 

Now,  if  your  Honors  please,  before  commencing  a more  elab- 
orate discussion  of  this  case,  I want  to  invite  your  Honors’ 
attention  to  what,  even  laying  aside  any  question  of  evidence 
at  all,  is  directly  before  this  court  on  Judge  Wright’s  order. 

I may  say  that  this  case  presents  in  a way  an  anomalous  situa- 
tion, and  to  all  intents  and  purposes  there  are  two  sets  of  find- 
ings of  facts.  There  is  an  opinion  which  contains  almost 
throughout  its  entire  extent  what  may  be  called  findings  of 
fact,  if  you  choose  to  give  them  that  name.  There  are  either 
two  sets  of  findings  of  fact,  or  there  are  none;  but  at  different 
intervals  throughout  the  opinion  the  court  finds  so  and  so;  and 
then  we  come  to  the  decree  itself.  On  page  638  of  the  record, 
after  the  recitals,  “Now  come  the  parties,  etc.,”  the  court  finds; 
“It  now  finds  the  fact  to  be,”  etc.  And  then  it  recites,  to  the 
extent  of  a page,  a large  number  of  disconnected  facts.  But 
in  the  latter  part  of  the  page  (and  it  becomes  necessary  care- 
fully to  consider  this,  to  see  the  exact  bearing  of  this  decree)  the 
court  further  finds  as  a fact  that  the  respondents,  Samuel  Gom- 
pers,  Frank  Morrison  and  John  Mitchell,  are  guilty  of  the  sev- 
eral acts  charged  in  paragraphs  17  and  26  of  the  complainant’s 
petition. 

Now,  they  are  all  found  guilty  of  the  several  acts  charged 
in  paragraphs  17  and  26.  Turn  to  paragraph  26,  if  you  will  for 
a moment,  and  you  will  find  this  situation : 

“Though  the  said  Samuel  Gompers,  Frank  Morrison,  John 
Mitchell,  and  the  other  defendants  in  the  original  bill,  their  and 
each  of  their  agents,  servants,  attorneys,  confederates — ” I 
see  that  I am  in  it;  I had  forgotten  that  fact. — 

“are,  by  the  order  of  this  court  of  December  18,  1907,  re- 
strained and  enjoined  pending  litigation — ” 

And  then  it  recites  the  orders  quite  at  length,  and  at  the  foot 
of  the  page  says : 

“Yet,  by  the  acts,  means  and  subterfuges  aforesaid,  the  said 
Samuel  Gompers,  Frank  Morrison  and  John  Mitchell  have  de- 
signed and  sought  to  continue  in  force  and  effect,  and  have 
continued  in  force  and  effect,  in  wilful  disregard,  violation,  dis- 
obedience and  contempt  of  the  aforesaid  order  and  decree  of 
this  court,  the  boycott — ” 

And  so  forth. 

Mr.  Davenport : The  boycott  and  conspiracy. 


135 


Mr.  Ralston : Oh,  yes — “and  the  conspiracy  recited  in  the 
bill  to  destroy  its  business,  which  they  and  the  other  defendants 
have  been  and  are,  by  the  said  order  and  decree,  restrained  and 
enjoined  from  continuing.” 

If  your  Honors  please,  therefore,  we  have  in  that  one  para- 
graph a finding  by  the  court  that  all  the  statements  set  out  in  the 
bill  are  found  by  the  court  to  be  facts,  because  there  are  no  acts, 
means,  devices  and  subterfuges,  except  in  everything  that  goes 
before.  It  is  not  in  this  paragraph,  because  there  are  none  set 
up  in  paragraph  26. 

So  that  while  we  have  distinctly  argued  in  our  brief  errors  of 
which  we  think  Judge  Wright  has  been  guilty  in  finding  facts 
antecedent  to  the  injunction  being  signed,  antecedent  to  the  in- 
junction becoming  effective,  and  after  the  injunction  became  ef- 
fective, while  we  have  found  our  objections  to  those,  referring 
specifically  to  the  different  pages  on  which  those  things  have 
been  separately  found,  yet  taking  a word  that  came  very  much 
in  vogue  a year  or  so  ago,  they  have  been  found  en  bloc  in  al- 
most the  last  line  of  this  particular  part  of  his  opinion,  so  that 
we  have  the  whole  bill  of  complaint  tumbled  into  the  final  order. 
That,  therefore,  includes  in  the  part  of  the  findings  of  the  Court 
the  various  actions,  which  were  committed  or  said  to  have  been 
committed  by  the  various  parties  to  this  suit,  long  before,  even 
years  before  there  ever  was  any  injunction  at  all,  and  that  is 
found  as  a fact,  and  that  all  these  things  were  done  for  the  pur- 
pose of  carrying  on  this  conspiracy,  acts  done  years  before  there 
was  any  conspiracy  found  by  the  court  as  being  done  for  the 
purpose  of  carrying  on  the  conspiracy,  and  that  is  made  a basis 
and  a foundation. 

Now  I think  it  is  important  (I  may  as  well  take  it  up  at  this 
point  as  at  any)  that  the  court  should  clearly  understand  the 
exact  relations  between  the  parties  to  this  case,  and  those  to 
whom  the  parties  in  this  case  may  be  said  to  represent  in  a 
fashion.  I do  not  think  it  has  been  brought  out  fully  yet. 

This  case  has  been  treated,  and  the  injury  and  trouble  that 
have  fallen  upon  Mr.  Van  Cleave,  have  been  treated  as  if  they 
were  the  result  of  some  action  to  which  Mr.  Gompers,  Mr.  Mor- 
rison and  Mr.  Mitchell  were,  if  not  the  only  parties,  the  super- 
vising and  directing  parties,  and  it  is  on  that  theory  that  it  is 
sought  to  hold  these  gentlemen  here  for  contempt,  and  sentence 
them  to  jail.  Now,  there  never  was  a more  mistaken  idea  of  a 
fact  than  that,  and  an  examination  of  the  record  will  show  it. 

It  will  be  found  from  the  record  that  there  is  in  the  United 
States  an  organization  known  as  the  National  Association  of 
Manufacturers,  that  it  claims  an  enormous  membership  scattered 
all  over  the  country,  that  its  general  purposes  are  antagonistic  to 
trade  organization;  that  the  chief  head  of  that  organization  is 
Mr.  J.  W.  Van  Cleave,  the  President  of  the  petitioner  here,  his 
corporation,  if  I am  correct,  being  a member  of  the  organization. 
I am  not  sure  whether  the  record  discloses  that  or  not,  so  per- 
haps I ought  not  to  say  it. 


136 


There  is  another  organization  in  this  country  the  purpose  of 
which  is  largely  devoted  to  active  antagonism  in  every  shape  and 
manner  to  trade  unions.  That  likewise  is  an  organization  for 
the  most  part  of  manufacturers,  of  business  men,  and  it  is  known 
as  the  Citizens’  Industrial  Alliance.  I think  that  is  the  exact 
title.  That  also  appears  from  the  record.  The  president  of  that 
organization  is  Mr.  Post,  the  manufacturer  of  Postum  Cereal. 
The  vice-president  of  that  organization  is  Mr.  J.  W.  Van  Cleave. 
Mr.  Van  Cleave  has  been  the  president  of  the  first-named  organ- 
ization for  two  or  three  years,  I do  not  know  the  exact  time,  and 
vice-president  of  the  other  organization  for  some  considerable 
length  of  time.  Now,  the  relations  between  those  bodies,  of 
which  he  is  respectively  president  and  vice-president,  and  the 
trade  organizations  throughout  this  country  have  for  years  been 
hostile  and  antagonistic.  So  much  was  this  the  truth  that  some 
years  ago,  perhaps  two  years  ago,  Mr.  Van  Cleave  recommended 
to  his  associate  manufacturers  the  advisability  of  raising  a fund 
of  $500,000  a year  to  run  over  several  years,  for  the  purpose,  as 
he  termed  it,  of  education,  but  for  purposes  which  were  well 
understood  of  attacks  upon  and  antagonism  to  trade  organiza- 
tions. Presumably  that  money  was  raised.  Certainly  large 
amounts  of  money  have,  as  appears  from  the  record,  been  spent 
by  somebody  in  certain  directions  which  I will  explain,  and  they 
are  not  accounted  for.  It  is  in  the  testimony  of  Mr.  Mitchell 
and  in  the  testimony  of  Mr.  Gompers  that  sometimes  for  long 
periods  of  time  they  have  known  themselves  to  be  followed, 
wherever  they  went,  by  detectives.  Somebody  had  a purpose  in 
doing  that.  Whether  it  was  the  organization  of  which  Mr.  Van 
Cleave  is  the  head  or  not,  I do  not  know.  There  is  the  fact. 
Now,  as  appears  in  the  record,  that  fact  was  widely  known, 
known  all  over  this  country,  known  to  members  of  trade  organ- 
izations probably  in  every  city  in  the  Union.  And  I may  say 
that  Mr.  Beck  has  quoted  several  times  to  your  Honors  with  ap- 
parent relish  a reference  to  Mr.  Gompers  as  the  master  of  a 
million  minds.  I am  justified  in  referring  to  that.  The  author 
of  that  expression  was  a man  who,  it  appears  on  the  face  of  the 
record,  came  to  Mr.  Gompers  with  credentials  purporting  at  least 
to  come  from  a newspaper  in  New  York  City,  of  which  Mr. 
Van  Cleave  is  the  principal  editor,  and  made  to  Mr.  Gompers  a 
corrupt  proposition  within  the  past  two  years,  involving  his  de- 
sertion of  the  labor  movement.  That  expression  “Master  of  a 
million  minds,”  is  not  the  coinage  of  Mr.  Gompers,  not  the  coin- 
age of  Mr.  Beck,  but  of  that  man  who  to-day  is  a fugitive  from 
justice  in  New  York  City,  a man  who  is  charged  with  having 
forged  the  name  of  ex-President  Cleveland  to  a letter  last  year. 

Now,  those  facts  are  known  throughout  the  length  of  the 
country.  Now,  with  all  the  evidence  of  that,  and  much  more 
that  I might  detail  from  this  record,  what  is  the  use  of  Mr. 
Beck  or  Mr.  Darlington  or  Mr.  Davenport  arising  before  your 
Honors  and  undertaking  to  charge  the  destruction  of  business 
on  these  three  gentlemen,  and  undertaking  to  charge  them  with 


137 


the  continuance  of  a boycott.  The  gentleman  who  has  declared 
war  against  them  has  himself  inaugurated  a corresponding  feel- 
ing of  determination  on  the  part  of  members  of  labor  organiza- 
tions, that  they  would  have  nothing  to  do  with  him.  And  so  far 
as  he  carried  his  own  hostility  to  organizations,  that  he  has  boy- 
cotted them  and  they  know  that  fact.  I read  from  the  record 
on  page  103.  One  of  his  foremen  is  examined : 

“Q.  Are  you  a member  of  any  organized  trade  union? 

“ A . No,  sir;  I am  not. 

“Q.  Have  you  ever  been? 

“A.  I never  have. 

“Q.  How  about  the  remaining  foremen  in  the  plaintiff’s  em- 
ploy ? Do  they  belong  to  any  organized — 

“A.  (interrupting).  Not  that  I know  of. 

“Q.  (continuing).  Union? 

“A.  None. 

“Q.  To  your  knowledge  are  any  members  of  organized  trade 
unions  employed  by  the  plaintiff? 

“A.  I don’t  know  of  any. 

“Q.  I suppose  you  mean,  except  the  iron-molders  ? 

“A.  Well,  I don’t  know  anything  about  the  iron-molders,  or 
the  men  in  that  department.  I know  nothing  about  that  work 
at  all. 

“Q.  What  departments  are  you  acquainted  with? 

“A.  I am  acquainted  with  the  polishers’  department,  and  the 
plating  department. 

“Q.  What  others  ? 

“A.  That  is  all.  That  is  all  I have  anything  to  do  with. 

“Q.  Are  any  people  employed  in  your  department  known  as 
‘foundry  employees’;  that  is,  foundry  laborers,  in  other  words? 

“A.  No  sir.  No ; I haven’t  anything  like  that.  Metal  polish- 
ers, buffers  and  platers,  that  is  all  I have. 

“Q.  At  the  present  time  there  are  no  members  of  organized 
labor  employed  within  your  knowledge  at  that  establishment? 

“A.  No;  not  within  my  knowledge,  no. 

“Q.  If  any  one  presented  himself,  would  you  employ  him? 

“A.  At  the  present  time ; no,  sir. 

“Q.  You  would  not? 

“A.  No,  sir;  I would  not. 

“Q.  By  whose  instructions  would  that  be? 

“A.  That  would  be  according  to  the  instructions  I receive 
from  headquarters  at  the  present  time.” 

And  what  was  headquarters?  Mr.  J.  W.  Van  Cleave.  It 
could  be  nobody  else. 

“O.  When  were  these  instructions  given? 

“A.  They  were  given  after  that — well,  I don't  know  the 


exact  date.  Let  me  see — it  was  along  after  the  strike  was  set- 
tled— I can’t  state  the  month. 

“Q.  Well,  about? 

“A.  Let  me  see.  Well,  it  was  toward  the  latter  part  of  the 
year. 

“Q.  Which  year;  1906? 

“A.  Of  1906;  yes,  sir.” 

Now,  there  is  the  condition,  a condition  which,  as  I say,  re- 
peating myself,  was  known  all  over  the  United  States.  Now, 
what  have  Gompers,  Morrison  and  Mitchell  done,  and  what  has 
been  done,  and  what  can  properly  be  attributed  to  them  as  the 
result  of  their  action  since  the  injunction  order  went  into  ef- 
fect? I ought  perhaps  to  say  this,  while  I do  not  want  to  speak 
disrespectfully  of  my  friends  on  the  other  side,  but  it  does  seem 
to  me  like  a wilful  and  determined  perversion  of  the  words  of 
Mr.  Gompers,  when  they  stand  up  here  and  tell  you  that  Mr. 
Gompers  in  advance  announced  his  intention  of  disobeying  the 
orders  of  this  or  of  any  other  court.  He  did  nothing  of  the 
kind.  There  is  not  a word  in  the  record  to  sustain  that,  nor  did 
Mr.  Mitchell.  But  what  he  said  was  simply  and  solely  this : that 
when  the  orders  of  a court  go  beyond,  interfere  with,  prevent 
the  exercise  of  my  rights  as  an  American  citizen,  then  I will  not 
be  bound  by  them.  And  that  is  what  this  court  has  said,  if  I in- 
terpret its  decision  correctly,  that  is  what  each  one  of  the  jus- 
tices here  has  said,  in  effect,  that  a decision  going  beyond  the 
powers  of  a court,  taking  away  from  a man  his  constitutional 
rights,  was  no  decision,  was  no  order;  and  the  thing  that  Mr. 
Gompers  has  said  he  would  not  obey  is  no  order  at  all. 

Now,  the  injunction  became  operative  on  the  23d  of  December. 
At  that  time  there  had  been  sent  out  several  thousand  (perhaps 
four  or  five  thousand,  I do  not  know  the  exact  number)  copies 
of  the  Federationist.  It  is  idle  even  as  an  original  proposition, 
to  attribute  any  considerable  amount  of  loss  incident,  if  there 
were  any  at  all  from  this  boycott,  to  the  circulation  of  these 
copies,  which  contain  nothing  more  than  the  placing  of  this  name 
in  an  obscure  place,  as  it  had  been  for  three  or  four  months 
previously.  Now,  it  was  the  desire  of  Mr.  Gompers,  even  when 
he  felt  that  the  order  of  the  court  infringed  upon  his  consti- 
tutional right,  and  even  where  it  did  infringe  upon  his  consti- 
tutional right,  it  was  his  desire  to  comply  with  the  order  of  the 
court,  and  from  that  day  to  this  the  name  of  the  Bucks  Stove 
& Range  Company  has  never  appeared  in  any  copy  of  the  Ameri- 
can Federationist  in  any  unfair  list,  the  most  emphatic  recogni- 
tion and  submission  to  the  power  of  this  court  that  could  pos- 
sibly have  been  given. 

But  it  is  said  that  about  that  time  there  were  circulated  copies 
of  the  proceedings  of  the  convention.  I am  sorry  I have  not  here 
(I  intended  to  bring  it  with  me;  it  is  among  the  papers  below) 
a copy  of  the  proceedings  of  that  convention,  embracing  prob- 

139 


ably  four  or  five  hundred  pages,  quite  closely  set  matter,  a re- 
port of  everything  that  happened,  perhaps  hundreds  of  resolu- 
tions contained  within  its  pages,  and  somewhere  in  those  pages 
there  is  a report  of  a certain  resolution.  Now,  it  became  the 
duty  of  Mr.  Morrison  as  the  Secretary  of  the  American  Federa- 
tion of  Labor,  to  see  to  the  circulation,  in  the  quarters  where 
it  belongs,  where  it  customarily  went,  of  those  copies.  He  pre- 
pared the  copy  which  was  put  in  the  printer’s  hands,  and  was 
perhaps  printed  before  the  order  of  the  court  was  even  signed, 
much  less  before  it  became  effective. 

Mr.  Justice  Robb:  That  was  all  done  in  due  course? 

Mr.  Ralston : That  was  all  done  in  due  course ; and  when 
Mr.  Morrison’s  attention  was  called  to  the  fact  that  it  contained 
a copy  of  a resolution  which  was  passed  in  November,  1907,  af- 
fecting the  Bucks  Stove  & Range  Company,  he  said,  “I  never 
gave  that  a thought.”  Nor  did  he.  It  was  there.  He  might  have 
thought  of  it.  It  might  have  occurred  to  him.  It  is  possible  he 
might  have  changed  it  and  prevented  that  going  out,  but  he 
simply  never  gave  that  a thought. 

Mr.  Justice  Robb:  That  was  for  purposes  of  record? 

Mr.  Ralston : For  purposes  of  record,  and  scattered  among 
the  trade  unions,  to  which  the  reports  of  that  convention  went. 

Mr.  Davenport : Seventy-five  or  a hundred  copies  were  dis- 
tributed and  sold. 

Mr.  Ralston : I do  not  think  there  is  any  evidence  that  one 
copy  was  sold.  I think  the  evidence  is  that  not  one  copy  was 
sold.  For  why  on  earth,  except  it  be  for  purposes  of  curiosity 
or  for  keeping  up  a record,  anybody  would  buy  it,  I can  not 
see,  because  it  certainly  is  very  dry  reading,  from  what  I Rave 
seen  of  it.  Nor  was  it  circulated — I think  your  Honors  must 
come  to  that  conclusion,  that  it  was  not  circulated  for  the  purpose 
of  carrying  on  any  boycott,  and  the  only  circulation  it  had  was 
incidental. 

Now,  it  is  said  some  copies  of  the  Federationist  were  sold, 
containing  this  boycott  resolution.  It  is  probable  that  some  were, 
a small  number.  Mr.  Davenport  says  a hundred.  My  recollec- 
tion of  the  record  is  thirty-seven,  but  it  does  not  matter  par- 
ticularly, either  way.  They  were  not  sold  under  the  orders  of 
Mr.  Gompers,  or  Mr.  Mitchell  or  Mr.  Morrison.  The  fact  is, 
and  it  has  been  absolutely  ignored  in  all  the  discussion  by  Mr. 
Beck  and  Mr.  Darlington,  the  fact  is  that  immediately  after  the 
reception  of  the  notice  of  the  order  becoming  effective,  Mr. 
Gompers  called  together  all  the  people  in  his  employ  and  told 
them  of  that  fact,  and  that  they  must  be  careful  not  to  violate 
the  order,  and  if  there  was  any  question  about  it  to  come  to  him. 
He  did  not  want  that  order  violated.  He  testifies  that  from  my 
office  he  received  a telephone  message  about  3 :20  o’clock  in  the 


140 


afternoon  of  the  day  the  signing  took  place.  He  was  notified 
of  course  at  once  upon  our  reception  of  the  matter,  and  imme- 
diately after  that  he  called  together  the  employees,  and  gave  them 
that  instruction.  Now,  that  is  what  the  record  shows. 

Mr.  Morrison’s  entire  connection  with  any  matter  sugges- 
tive of  a boycott,  suggestive  of  a violation  of  the  orders  of  this 
court  up  to  this  point,  are  entirely  negatived.  Now,  suppose 
there  were,  and  there  seem  to  have  been,  some  copies  sold.  Do 
your  Honors  believe  for  a moment  that  those  copies  were  sold 
for  the  purpose  of  carrying  on  a boycott?  To  me  it  is  incon- 
ceivable that  a copy  of  the  Federationist  containing  as  I say,  in 
an  obscure  place,  three  lines  about  the  Bucks  Stove  & Range 
Company  should  be  sold  over  its  counters  for  the  purpose  of 
carrying  on  a boycott.  While  we  can  not  any  of  us  claim  any 
special  experience  in  that  line,  I think  from  observation  and 
from  what  we  have  heard  of  the  subject  matter,  we  can  very 
readily  perceive  very  much  more  effective  ways  of  doing  that. 
Now,  up  to  this  time  Mr.  Mitchell  has  not  been  brought  into  this 
case,  up  to  this  point  of  the  discussion,  in  point  of  time.  Mr. 
Mitchell  knew  of  the  existence  of  the  order.  He  is  charged  in 
the  first  place  with  being  the  editor  and  responsible  for  a publi- 
cation which  took  place  about  the  8th  or  9th  of  January,  in  the 
United  Mine  Workers’  Journal. 

Mr.  Justice  Robb : That  would  not  seem  to  be  very  serious. 

Mr.  Ralston : He  had  absolutely  no  connection  with  it,  al- 
though he  is  found  to  have  had.  It  is  set  out  in  full  in  the  peti- 
tion that  he  was  the  editor,  and  that  he  did  so-and-so  about  it, 
and  Mr.  Justice  Wright  finds  that  to  be  the  fact. 

Mr.  Justice  Robb:  The  most  serious  charge  against  Mr. 
Mitchell,  however,  is  that  resolution. 

Mr,  Ralston : Yes.  Now,  your  Honors  will  understand  that 
you  ought  to  picture  this  situation  in  its  entirety.  Mr.  Mitchell 
has  denied  all  recollection  of  the  matter.  He  has  denied  more 
than  that.  He  has  denied  that  he  had  anything  to  do  with  it 
in  any  shape  or  knew  anything  about  it.  I think  that  is  his  lan- 
guage, if  I remember  it  correctly.  I do  not  want  to  take  the  time 
to  refer  to  it.  He  was  guiltless  so  far  as  the  preparation  or 
introduction  or  passing  of  that  resolution  was  concerned,  save 
that  he  was  in  the  chair.  There  are  several  witnesses  who  testify 
that  he  was  in  the  chair.  There  is  no  witness  who  testified  that 
he  paid  any  particular  attention  to  that  resolution,  or  that  he 
had  his  attention  directed  to  the  particular  resolution  at  the  time 
of  its  passing.  One  or  two  witnesses  do  say  that  he  was  near 
enough  to  the  Secretary  who  was  reading  it  to  have  heard  him, 
ten  or  fifteen  feet  away,  a short  distance. 

The  Chief  Justice:  Does  he  not  say  in  his  answer  that  no 
doubt  he  did  hear  it,  but  that  he  does  not  recollect  it;  but  no 
doubt  he  did  hear  it. 

Mr.  Ralston : I think  he  uses  some  such  expression. 


141 


Mr.  Justice  Robb:  He  was  a member  of  the  Executive  Coun- 
cil ? 

Mr.  Ralston : He  was  a member  of  the  Executive  Council. 

Mr.  Justice  Robb:  And  he  had  knowledge  of  the  controversy 
between  the  National  Association  and  the  Bucks  Stove  people? 

Mr.  Ralston : Yes ; he  had  knowledge.  Now,  perhaps  I can 
find  exactly  what  he  says.  He  had  been  ill  immediately  preced- 
ing that  time  and  unfit  for  business.  I think  he  was  ill  at  the 
time  the  order  was  passed.  That  is  my  recollection  of  the  record. 
“He  admits — ”• 

Mr.  Davenport:  Are  you  reading  from  his  answer? 

Mr.  Ralston:  Yes;  page  31. 

Mr.  Davenport : His  Honor  is  referring  from  what  he  said 
on  my  cross-examination. 

Mr.  Ralston:  I will  come  to  that.  “He  admits  that  on  Jan- 
uary 25,  1908,  he  was  in  the  chair  as  presiding  officer  of  the 
19th  annual  convention  of  the  United  Mine  Workers  of  America, 
held  at  Indianapolis,  Indiana.  From  reference  to  the  minutes  of 
the  proceedings  had  at  that  time,  he  finds  that  the  resolution 
referred  to  in  said  paragraph  was  submitted  and  carried  by  the 
convention.  That  having  no  recollection  whatever  as  to  the  mat- 
ter, he  can  neither  admit  nor  deny  that  he  was  presiding  at  the 
time  said  resolution  was  submitted.” 

He  found  afterward  that  he  was  in  the  chair,  but  it  was 
only  by  the  record  that  he  knew  of  it. 

“That  he  took  no  active  part  whatever  in  causing  the  matter 
of  the  boycott  of  the  petitioner  to  be  submitted  to  the  convention, 
and  until  the  matter  was  brought  to  his  attention  by  the  filing 
of  the  petition  herein,  did  not  know  that  the  subject  had  been 
acted  upon  by  the  convention  referred  to.” 

Now,  there  is  the  testimony  of  Mr.  Stroud,  referred  to  in 
connection  with  some  incident,  and  that  has  been  commented 
upon.  The  direct  testimony  of  Mr.  Stroud  has  been  commented 
upon  quite  extensively  by  Mr.  Gompers.  The  cross-examination 
was  not  commented  on;  and  there  he  says  in  effect,  as  I remem- 
ber, that  under  the  circumstances  of  that  convention,  that  under 
the  rush  Mr.  Mitchell  was  under,  the  resolution  might  very  well 
have  been  submitted  to  the  convention,  without  his  having  a real 
knowledge  of  its  contents ; that  he  was  constantly  being  spoken 
to,  being  called  away,  had  to  keep  the  general  run  of  things. 
Your  Honors  have  to  picture  a convention  of  about  a thousand 
men,  with  all  the  crowd  and  confusion  that  would  exist  there, 
and  all  the  burdens  that  would  fall  upon  the  presiding  officer. 
He  says,  on  page  301  of  this  record : 

“I  can  not  recall  anything  of  the  introduction  of  or  passing  of 
the  resolution.  By  referring  to  the  transcript  of  the  record  I 
see  I was  in  the  chair  when  the  resolution  was  adopted. 

“Q.  But  you  have  no  independent  recollection  in  regard  to  it  ? 

“A.  I have  not. 


142 


“Q.  What  was  the  mode  of  procedure  pursued  by  you  in  a 
matter  of  that  kind  when  the  committee  recommended  concur- 
rence in  the  resolution?  This  says  that  the  recommendation  of 
the  committee  was  concurred  in,  the  vote  being  unanimous. 

“A.  The  proceeding  was  simply  the  ordinary  practice  of  the 
chairman.  A statement  was  made  that  the  motion  was  received 
that  the  report  of  the  committee  be  concurred  in  and  remarks 
were  called  for.  If  there  were  none  the  motion  was  placed  be- 
fore the  convention  or  declared  carried  or  lost,  as  the  case  might 
be. 

“Q.  And  how  was  the  fact  that  the  vote  was  unanimous  as- 
certained ; was  it  declared  by  the  chair  ? 

“A.  Frequently,  if  there  were  no  objections,  the  motion  is 
declared  adopted.  At  other  times  the  actual  vote  is  taken.  A 
call  is  made  for  those  in  favor  of  the  motion  to  say  ‘aye’  and 
those  opposed  to  say  ‘nay.’  I do  not  recall  in  this  instance,  as 
I have  no  recollection  of  it,  whether  that  was  declared  to  be 
carried  in  the  absence  of  opposition,  or  whether  an  actual  vote 
was  taken  on  it.  I might  say  here  that  it  is  probable  that  in  that 
instance  there  was  no  vote  taken  upon  the  subject.” 

That,  I think,  is  substantially  all  of  it. 

Mr.  Davenport:  No;  he  is  asked  to  read  the  record — 

Mr.  Ralston : I must  be  permitted  to  make  my  own  argument 
in  my  own  way,  my  time  is  very  limited. 

The  Chief  Justice : Do  not  interrupt  counsel.  The  time  is 
short. 

Mr.  Ralston : I can  not  read  it,  but  I shall  be  glad  to  have  the 
court  read  all  that  Mr.  Mitchell  has  said.  I am  favored  now  with 
a copy  of  this  report  of  the  American  Federation  of  Labor,  con- 
taining 356  double  column,  small  type,  pages. 

The  Chief  Justice:  That  is  the  Norfolk  convention? 

Mr.  Ralston : That  is  the  Norfolk  convention.  I have  stated 
all  with  regard  to  Mr.  Mitchell,  except  that  he  took  part  in  the 
“urgent  appeal.”  Much  stress  is  laid  upon  that,  and  is  laid  upon 
the  editorial  which  accompanied  it.  The  whole  editorial  is  a 
most  interesting  one,  and  to  my  mind  a most  able  one.  It  is  con- 
tained in  the  record  in  the  old  case,  I think  on  page  474,  if  I 
remember  correctly.  I am  not  going  to  trouble  your  Honors  with 
it.  It  seems  to  me  like  a fair,  temperate,  and  under  the  circum- 
stances if  you  will,  a courageous  presentation  of  the  views  of  a 
man  who  dared  to  criticize  an  action  which  he  believed  to  be  a 
wrong,  and  unjustified  by  the  Constitution  of  the  United  States. 
That  editorial  as  I say  accompanied  this  urgent  appeal.  The  pur- 
pose of  the  urgent  appeal  was  to  raise  funds  to  enable  these  de- 
fendants and  their  associates  to  further  protect  themselves  by 
an  appeal  to  this  honorable  court.  In  its  course  it  stated,  as  it 
had  to  state,  that  the  court  below  had  adjudicated  against  them, 
that  the  court  below  had  found  wrongfully,  as  they  believed  it. 
that  they  had  been  guilty  of  a boycott,  and  that  they  were  entitled, 
they  believed,  to  relief  from  that,  and  they  asked  in  the  name  of 


143 


labor,  in  the  name  of  their  Americanship,  for  funds.  When 
they  did  that,  if  your  Honors  please,  they  violated  the  terms  of 
that  injunction,  and  I am  here  to  admit  it,  and  I do  not  hesitate 
to  admit  it.  They  violated,  grossly  violated,  if  you  will,  if  such 
an  expression  can  be  used  in  that  connection,  the  terms  of  that 
injunction.  That  injunction  forbade  them  to  say  or  to  write 
that  the  products  of  the  Bucks  Stove  & Range  Company  were 
boycotted,  or  ever  had  been  boycotted,  and  they  wrote  it  in  that 
urgent  appeal,  and  they  had  to  do  it  to  get  their  funds,  and 
they  violated  the  order  of  the  court  below  when  they  did  it,  and 
they  violated  the  terms  of  the  order  of  the  court  below.  But 
what  did  that  court  below  do?  That  court  below  in  its  order, 
broad  as  it  was  literally  interpreted,  precluded  them  from  taking 
an  appeal.  Not  only  might  they  not  appeal  for  funds  in  order 
to  help  them  to  take  an  appeal,  because  in  so  doing  they  had  to 
say  something,  but  they  could  not  even  take  an  appeal  under  the 
terms  of  that  order  literally  applied ; because  what  is  the  result 
of  an  appeal?  The  clerk  will  have  to  write  out  these  things  at 
their  instigation,  the  printer  will  have  to  find  out  that  they  have 
been  guilty  of  contempt,  and  that  the  Bucks  Stove  & Range  Com- 
pany have  been  boycotted;  and  your  Honors  finally  had  to  learn, 
against  the  orders  of  the  court  below,  that  the  boycott  existed.  I 
say  that  is  a literal  interpretation  of  that  order  below,  and  I re- 
peat, as  I had  occasion  to  say  in  this  courtroom  once  before, 
that  when  I prepared  my  brief,  when  I came  before  this  court 
to  argue,  I was  in  contempt  of  the  order  of  the  court  below. 
Now,  an  order  which  is  so  drawn,  an  order  which  will  deprive  a 
man  of  his  primary  rights,  his  right  of  self-defense  in  a 
court  of  justice,  his  right  to  get  the  means  for  a defense,  is  an 
order  which  must  be  void  from  the  beginning  and  all  the  way 
through. 

Now,  I admit  that  violation  in  that  sense  and  in  that  respect 
of  the  order  of  the  court  below ; not  for  the  purpose  of  further- 
ing a boycott,  not  with  the  idea  that  a boycott  would  be  furthered, 
but  in  self-defense. 

Now,  passing  on  rather  hurriedly  as  I must,  what  are  the  next 
acts  charged  against  these  petitioners  in  the  way  of  a boycott? 
Mr.  Gompers  has  been  charged  with  making  speeches,  which  I 
am  prepared  to  admit  is  a serious  offense  sometimes,  particu- 
larly when  they  are  too  long.  But  he  has  been  charged  with  mak- 
ing speeches  in  the  course  of  which  he  has  used  language  which 
his  Honor  Mr.  Justice  Robb  thought  appropriate  in  his  opinion, 
and  properly  so.  He  has  said  they  were  not  compelled,  and  they 
could  not  be  compelled,  to  buy  the  products  of  the  Bucks  Stove 
& Range  Company.  Is  that  a boycott?  Does  that  suggest  a 
boycott?  I submit  not.  The  decisions  of  this  court,  the  decision 
of  this  court  in  the  last  case,  shows  as  it  seems  to  me  with  ab- 
solute clearness  that  any  man  and  any  set  of  men  apparently 
had  a right  to  determine  for  themselves  that  they  would  not 
buy  the  product  of  a particular  man  or  deal  with  a particular  man, 


144 


but  that  it  was  when  they  went  beyond  that  and  used  threats 
or  force,  and  brought  in  other  people  and  said,  “Unless  you 
cease  your  dealings  with  that  man  we  will  punish  you’’ — until 
that  element,  or  some  such  element  as  that,  was  brought  into 
play,  there  was  no  boycott. 

Now,  if  your  Honors  please,  your  Honors  can  not  find  charge- 
able in  any  degree  to  the  appellants  here  a single  act  except  as 
I have  stated,  going  beyond  the  question  of  a so-called  primary 
boycott.  Now,  has  anything  ever  been  done  pursuant  to  the 
action — 

Justice  Van  Orsdel : What  do  you  say  to  the  Mine  Workers’ 
resolution,  where  they  passed  a resolution  to  fine  their  members 
five  dollars  if  they  purchased  a stove  of  the  Bucks  Stove  & 
Range  Company?  Is  not  that  coercion? 

Mr.  Ralston : That  was  coercion  in  a sense,  and  in  a sense 
not.  Of  course  the  alternative  might  have  existed  of  leaving 
the  order.  Of  course  that  is  the  only  thing  that  could  be  at  all 
suggested,  and  that  resolution  was  not  passed  at  the  suggestion 
of  any  one  of  these  petitioners. 

Now,  it  is  said  that  notwithstanding  that  fact  these  various 
speeches  of  Mr.  Gompers  were  understood  in  a different  sense 
by  his  friends  and  associates  from  what  the  words  would  seem 
to  imply,  and  there  have  been  inserted  into  the  record  here,  in 
a picturesque  way,  and  particularly  on  pages  614  and  615,  an- 
nouncements contained  in  various  papers  throughout  the  coun- 
try, some  of  them  later  in  date  than  the  decrees  below,  upon 
which  the  contempt  action  is  predicated,  and  which  are  attributed 
to  these  appellants.  By  what  authority  are  they  so  attributed? 
There  is  not  the  slightest  connection  between  one  of  these  publica- 
tions and  the  appellants  here.  The  appellants  have  no  control 
over  the  papers  in  which  they  appeared,  did  not  request  their 
publication,  and  in  the  only  paper  over  which  they  had  control, 
such  publications  did  not  appear.  There  is  not  the  slightest  asso- 
ciation with  them  so  far;  and  if  I may  use  the  word,  to  such  a 
fairly  ridiculous  extent  has  this  attempt  to  make  a case  been 
carried,  that  some  of  these  lurid  representations  are  copied  from 
the  Cleveland  Citizen  as  evidence  against  Mr.  Gompers. 

Now,  the  fact  sufficiently  appears  in  the  record  to  be  this: 
The  Cleveland  Citizen  is  conducted  by  Mr.  Bandlow  and  Mr. 
Hayes  of  Cleveland.  They  are  both  socialists,  and  the  organiza- 
tions to  which  they  belong  are  largely  permeated  with  the  so- 
cialistic idea.  They  never  published  the  boycott  notice  of  the 
Bucks  Stove  & Range  Company  until  the  American  Federationist 
stopped  doing  it,  and  they  did  not  do  it  out  of  any  friendliness 
to  Mr.  Gompers.  Their  attitude  is  easily  understood : “Mr. 
Gompers  in  Washington  is  afraid  of  the  courts.  We  are  not 
afraid.”  It  was  to  cast  discredit,  not  to  follow  Mr.  Gompers, 
but  to  cast  discredit  upon  him. 


145 


Mr.  Darlington:  Are  you  within  the  record? 

Mr.  Ralston : I think  entirely  within  the  record ; not  in  that 
particular  comment,  but  I think  it  is  a fair  inference  from  the 
other  facts  which  are  in  the  record,  a fair  comment.  And  I say 
that  for  this  reason : There  was  a condition  of  absolute  personal 
enmity  between  these  men,  representing  a branch  of  thought 
with  which  Mr.  Gompers  has  never  had  any  sympathy,  and  Mr. 
Gompers.  Mr.  Bandlow  particularly  speaks  of  the  personal  an- 
tagonism that  there  had  been  between  himself  and  Mr.  Gompers. 
Mr.  Gompers  did  not  regard  him  as  a proper  editor,  did  not 
believe  in  his  ideas,  social  and  political,  and  yet  Mr.  Gompers  is 
here,  being  charged  with  responsibility  for  the  acts  of  Mr.  Band- 
low. 

Now,  I go  a step  further.  There  are  two  witnesses  here,  aside 
from  these  newspaper  publications  I speak  of,  two  witnesses  and 
two  only  who  testify  to  any  overt  act  committed.  Both  of  these 
witnesses  are  employed  of  the  Bucks  Stove  & Range  Company, 
Mr.  Templeton,  and  I forget  the  name  of  the  other  gentleman. 
They  say  that  in  various  places  since  that  time  people  have  re- 
fused to  deal  with  them  or  to  take  their  stoves,  sometimes  say- 
ing, “Wait  until  the  boycott  is  over,”  and  sometimes  saying, 
“Make  your  adjustment  with  the  Federation  of  Labor  or  with 
the  labor  organizations  in  the  Federation,  and  we  will  be  glad 
to  deal  with  you,”  and  some  saying  that  a large  number  of  labor- 
ing men  fmd  told  them  that  they  would  not  buy  those  stoves, 
and  so  forth.  There  has  been  no  issuance  of  circulars,  no 
threats  other  than  the  non-intercourse  threats  such  as  I speak  of, 
and  that  proof  comes  to  your  Honors  by  way  of  hearsay,  because 
no  man  has  come  forward  to  say  that  because  of  any  action  of 
the  respondents,  Gompers,  Mitchell  and  Morrison,  or  of  any 
other  member  of  the  great  organization,  the  Federation  of  Labor, 
he  has  ceased  to  deal  with  the  Bucks  Stove  & Range  Company  or 
that  he  would  not  deal  with  them.  That  is,  as  I say,  simply  the 
hearsay  testimony  of  the  two  men  upon  that  point. 

Now,  laying  aside  the  question  of  hearsay,  it  is  probable  that 
since  the  23d  day  of  December  many  men  throughout  the  country 
have  said  to  dealers  in  stoves,  “We  will  not  buy  those  stoves.” 
Mr.  Gompers  could  not  change  their  minds  upon  that  subject 
if  he  would,  and  if  he  were  to  attempt  it  it  would  involve  his  ut- 
ter personal  destruction.  Why?  Remember  for  the  moment 
what  I have  had  to  say  of  the  antagonism  existing  between  the 
labor  organizations  throughout  this  country  and  Mr.  Van  Cleave, 
or  between  the  individual  members  of  labor  organizations  all 
through  this  country  and  Mr.  Van  Cleave ; an  antagonism  which 
has  no  reference  at  all  to  the  strike  of  thirty  or  forty  stove  polish- 
ers in  Missouri,  not  the  slightest  reference  to  that ; an  antagonism 
which  antedates  it,  which  has  grown  more  intense  because  Mr. 
Van  Cleave  and  his  organization  (to  supplement  what  I said  be- 
fore) stand  against  everything  which  looks  in  the  line  of  human 
progress  for  which  labor  organizations  stand.  For  instance,  as 


146 


the  testimony  shows,  his  attitude  is  unfriendly,  to  say  the 
least,  to  child  labor  laws.  It  is  unfriendly  to  the  eight-hour 
law,  it  is  distinctly  unfriendly  to  employers’  liability  laws  and 
matters  of  that  kind,  and  he  boasts  (the  extended  records  in  this 
case  are  not  all  printed)  of  his  success  in  antagonizing  and  fight- 
ing some  of  those  laws.  So  we  have,  from  that  point  of  view, 
ample,  abundant,  abounding  reasons  for  the  feeling  all  over  this 
country  against  this  man,  and  consequently  against  the  particular 
corporation  of  which  he  is  the  shining  representative. 

Now,  I want  to  finish  my  idea.  With  that  feeling  permeating 
two  million  men,  if  Mr.  Gompers  were  to  come  out  to-morrow 
and  say  in  the  Federationist,  “My  friends,  we  have  been  all 
wrong  in  our  antagonism  to  Mr.  Van  Cleave;  I wish  you  would 
buy  hiS  stoves,  do.  not  continue  your  refusal  of  intercourse,” 
Mr.  Gompers  would  not  remain  president  of  that  organization 
any  longer  than  it  would  take  his  associates  or  some  other  com- 
petent power  to  remove  him,  because  they  would  feel  that  he  by 
such  an  attitude  had  betrayed  them  to  their  enemy,  their  enemy 
on  a score  of  fields ; their  enemy  politically,  their  enemy  before 
Congress,  their  enemy  in  the  courts,  their  enemy  in  industrial 
disputes.  He  would  not  dare  on  his  life  to  take  such  a position, 
and  that  is  the  position  our  friends  would  have  him  take,  or 
otherwise  go  to  jail  for  a year. 

Mr.  Justice  Van  Orsdel : Is  there  anything  in  this  record  to 
show  the  purposes  of  this  National  Manufacturers’  Association 
in  relation  to  labor  unions? 

Mr.  Ralston : Yes,  if  youi3  Honors  please. 

Mr.  Justice  Van  Orsdel : Do  not  stop  to  read  it.  I just  wanted 
to  know. 

Mr.  Ralston:  Yes.  It  is  for  the  most  part  in  a large  number 
of  exhibits.  I do  not  think  that  in  my  statement  of  its  objects 
I have  gone  one  hair’s  breadth  beyond  what  has  been  shown  by 
abundant  printed  exhibits  in  this  case.  I may  say  I have  not  even 
enumerated  them  all.  One  illustration  I ought  to  give  before 
I completely  leave  that  part  of  the  case.  I stated  that  Mr.  Post 
was  the  associate  of  Mr.  Van  Cleave  in  these  various  matters. 
Your  Honors  will  recall  and  I can  ask  your  Honors  to  recall  it 
because  it  is  in  the  record,  that  last  summer  in  the  papers  in  this 
city  as  well  as  in  papers  all  over  the  United  States,  there  were 
extensive  appeals  to  prejudice  against  trade  unions,  most  blatant 
appeals  (I  would  use  the  word  blatant  if  I were  not  speaking  oi 
such  respectable  gentlemen  instead  of  speaking  of  trades  unions) 
to  prejudice,  misrepresentation  of  facts,  and  everything  of  that 
kind,  put  forward  by  this  gentleman,  Mr.  Post.  We  can  only  con 
elude  that  they  were  put  forward  out  of  this  defense  fund,  be- 
cause the  cost  of  it  must  have  run  into  thousands  and  tens 
thousand  dollars. 

Mr.  Justice  Van  Orsdel : Is  there  anything  in  the  record  that 
shows  an  agreement  between  the  members  of  this  Manufacturers 
Association  not  to  employ  trades  union  men? 


147 


Mr.  Ralston : Yes.  I can  not  give  you  all  the  details  of  it 
now,  but  there  is  a great  deal. 

Mr.  Darlington:  We  differ  totally  on  that.  We  claim  there 
is  not  a word  of  testimony  on  the  subject,  and  we  will  leave  it 
to  an  examination  of  the  record. 

Mr.  Ralston : I will  be  glad  to  have  the  court  examine  the 
record.  I can  understand  Mr.  Darlington  making  that  state- 
ment, because  Mr.  Darlington  was  not  present  when  the  record 
was  being  made. 

Mr.  Darlington : I have  read  every  line  of  it. 

Mr.  Ralston : It  would  take  you  about  three  months  to  read 
every  line  of  it. 

Mr.  Darlington:  I have  read  every  word  of  it. 

Mr.  Ralston:  I am  glad  you  have  been  such  a faithful  reader 
of  all  the  exhibits. 

The  Court : We  usually  assume  that  counsel  have  read  their 
own  record. 

Mr.  Ralston:  Mr.  Darlington  was  not  present  when  the 
record  was  taken,  and  I affirm — and  I think  I am  incapable  of 
falsifying — 

Mr.  Darlington : I do  not  intimate  that  for  a moment. 

Mr.  Ralston : I will  appeal  to  the  records,  and  your  Honors 
will  find  it  in  the  fullest  possible  manner  set  out  in  connection 
with  the  testimony  of  Mr.  Gompers,  in  connection  with  the  testi- 
mony of  Mr.  Hayes,  and  of  Mr.  Bandlow,  as  to  the  employment 
of  detectives  and  the  attempt  to  bribe  Mr.  Gompers,  and  there 
are  set  forth,  as  I remember,  editorials  of  the  Manufacturers' 
Association,  editorials  of  Mr.  Van  Cleave,  in  which  he  boasts  of 
his  various  achievements  in  defeating  these  various  objects  to 
which  I have  alluded,  and  all  that.  It  is  all  in  the  record.  It 
would  make  a printed  volume,  I suppose,  about  five  times  as 
large  as  what  your  Honors  have  before  you,  if  it  were  all  to  be 
printed,  and  your  Honors  fortunately  are  not  to  be  burdened 
with  it. 

Now,  if  your  Honors  please,  I find  that  of  the  time  allotted 
to  me,  I have  but  a few  minutes  remaining,  but  I ought  to  de- 
vote a moment  at  least  to  speaking  of  the  character  of  the  de- 
cree upon  which  we  say  contempt  can  not  be  predicated. 

Our  contention  is  that  a decree  violative  of  a constitutional 
right  is  absolutely  void.  If  by  way  of  example  a court  in  this 
jurisdiction,  having  before  it  a question  of  conspiracy,  for  which 
I believe  there  is  no  fixed  statutory  penalty,  were  to  find  men 
guilty  of  that  offense,  and  were  to  sentence  them  to  be  hanged,  is 
it  for  a moment  to  be  considered  that  that  sentence  would  be 
anything  but  void?  Why?  Because  it  is  utterly  in  the  teeth 
of  the  constitutional  prohibition  against  cruel  and  unusual  pun- 
ishment. In  this  case  the  court  below  has  stripped  these  defend 
ants,  or  undertaken  to  strip  these  defendants,  naked  of 
their  right  to  appeal  to  an  upper  court.  It  has  un 
dertaken  to  strip  them  of  the  right  to  comment,  favorably  or 
unfavorably  upon  its  own  action,  involving  as  it  necessarily  would 


148 


the  announcement  or  reference  to  the  fact  that  once  there  had 
been  a boycott  of  the  Bucks  Stove  & Range  Company.  What 
different  view,  from  the  constitutional  standpoint,  is  there  be- 
tween an  order  of  a court  which  inflicts  cruel  and  unusual  pun- 
ishment, and  an  order  of  the  court  which  says,  “You  shall  not 
exercise  your  constitutional  rights?”  Is  one  provision  of  the 
Constitution  superior  in  authority  to  another?  Is  one  to  be  fol- 
lowed and  another  disregarded?  This  court  has  said,  as  I inter- 
pret it,  by  all  three  of  its  members,  that  the  decree  went  too  far, 
and  why?  Because  it  violated  the  constitutional  rights  of  the 
defendants,  took  them  away  from  them.  But  we  are  told  that 
that  is  mere  error,  and  it  does  not  matter  whether  your  con- 
stitutional rights  are  taken  away  from  you,  you  must  seek  your 
remedy  by  way  of  appeal,  in  the  face  of  the  fact,  as  I said, 
that  there  was  certainly  a technical  violation  of  the  order  in 
taking  that  appeal.  Is  that  position  correct?  Can  it  be  correct? 
The  question  has  been  so  largely  argued  in  this  court  and  so 
largely  argued  in  many  other  courts,  that  there  is  little  that 
I could  presume  to  add  to  the  discussion.  But  there  is  this  sug- 
gestion I want  to  make:  If  the  executive  power,  great  as  it  is, 
independent  as  it  is,  a co-ordinate  branch  of  this  government — if 
this  great  executive  power  passes  an  order  unconstitutional  in 
its  character,  what  will  the  courts  of  justice  say  of  it?  They 
will  say  it  is  nugatory,  absolutely  void.  If  Congress,  independent, 
a co-ordinate  branch  of  this  government,  passes  a law  violative 
of  a constitutional  principle,  taking  away  the  rights  of  the  citi- 
zens, and  that  order  is  invoked  in  court,  we  know  what  happens 
to  it.  We  know  that  the  rights  of  the  citizen  are  protected 
against  the  encroachments  of  Congress  as  well  as  against  the 
encroachments  of  the  Executive  and  Congressional  action  and 
Executive  action  alike  fall  in  the  temples  of  justice.  Now,  is  it 
to  be  supposed  that  there  is  one  power  superior,  even  for  one 
moment  superior,  to  the  Constitution,  superior  to  the  funda 
mental  laws  of  the  land,  and  that  that  power  is  a nisi  prius 
judge?  That  what  Congress  may  not  do,  what  the  Executive  of 
the  United  States  may  not  do,  a judge  hearing  the  case  in  the 
first  instance  may  do  with  impunity,  may  with  impunity  take 
away  the  rights  of  the  citizen?  It  is  of  no  avail  to  say  that 
there  is  an  appeal.  The  rights  may  be  lost  pending  the  appeal. 
They  are  lost  in  this  case;  they  would  be  lost  pending  the  appeal, 
if  the  view  of  my  friends  upon  the  other  side  were  correct,  and 
between  the  time  of  the  entry  of  the  order  below  and  the  cor- 
rection of  the  gross  error  contained  in  it  by  the  court  above, 
the  appellants  in  this  case  would  remain  American  citizens  with 
their  constitutional  rights  taken  away  from  them,  with  them- 
selves robbed  of  those  constitutional  rights  during  that  long 
period.  A constitutional  right,  if  I understand  it,  is  an  absolute 
and  a sacred  thing.  It  is  not  a thing  which  any  man,  Executive, 
Congress  or  courts,  has  the  right  to  deprive  another  of  for  any 
length  of  time. 

I am  reminded  of  the  case  in  which  I took  part  many  years 

149 


ago,  twenty  years  ago  now,  of  Callan  vs.  Wilson,  a case  referred 
to  in  subsequent  cases,  a case  arising  here  in  the  police  court. 
At  that  time  there  was  no  trial  by  jury  in  the  police  court.  I 
asked  for  trial  by  jury,  knowing  it  would  be  refused.  It  was 
refused  and  the  man  was  condemned.  I got  out  a writ  of  habeas 
corpus.  His  release  was  refused  by  the  Supreme  Court  in 
Special  Term  and  General  Term,  and  it  went  to  the  Supreme 
Court  of  the  United  States,  and  the  whole  argument  on  the 
other  side  was  this : This  man  Callan  has  lost  nothing,  because 
suppose  he  did  not  get  his  jury  trial  in  the  court  below,  he 
had  a right  of  appeal  to  the  Supreme  Court  of  the  District  of 
Columbia  sitting  as  a criminal  court,  and  if  he  had  taken  his 
appeal  after  his  condemnation,  why  it  would  have  been  all  right ; 
so  that  as  long  as  he  had  a right  to  appeal  to  a court  where  he 
would  get  his  constitutional  right  of  trial  by  jury,  he  was  de- 
prived of  nothing.  But  the  Supreme  Court  of  the  United  States 
brushed  that  aside  very  quickly,  said  that  the  man  was  entitled  to 
his  right  of  trial  by  jury  in  the  first  instance,  and  he  was  not 
compelled  to  appeal  to  get  his  constitutional  right.  Now,  as  it 
seems  to  me,  your  Honors  here  are  in  a position  exactly  anala- 
gous.  We  ought  not  to  be  compelled  to  appeal  for  a constitu- 
tional right,  and  that  is  the  position  in  which  our  friends  would 
place  us. 

If  your  Honors  please,  the  case  is  so  large  a one  I feel  almost 
as  if  I could  rival  some  of  my  opponents  in  the  length  of  their 
arguments,  but  I have  covered  it  at  least  as  best  as  I can  in  the 
time  allotted  to  me,  and  I have  to  thank  your  Honors  for  the 
courtesy  of  your  attention. 


supplementary  memorandum  for 
APPELLEE. 

Upon  examination  of  their  argument  of  the  legal  question 
principally  discussed  in  the  above  cause,  namely,  that  of  the 
validity  or  binding  effect  until  modified  or  reversed  or  a judg- 
ment or  decree  of  a court  of  general  jurisdiction,  counsel  for  the 
appellee  find  that  they  have  perhaps  failed  to  state  with  sufficient 
clearness  the  distinction  upon  which,  in  their  view,  that  question 
turns,  and  which  largely  if  not  wholly  reconciles  any  apparent 
conflict  among  the  decisions  cited  with  respect  to  it.  That  dis- 
tinction is,  Where  the  court  below  was  authorized  to  hear  and 
determine , i.  e.,  to  hear  and  decide  the  cause  upon  its  merits,  it 
had  jurisdiction , which  jurisdiction  could  not  be,  and  was  not, 
thereafter  lost,  and  its  judgment  rendered  ipso  facto  void  or 
not  binding  upon  the  parties,  while  remaining  unmodified  or  un- 
reversed, by  the  correctness,  or  incorrectness  of  the  judgment 
reached  by  it  upon  the  merits,  which  it  was  thus  authorized  and 
called  upon  to  decide.  In  the  cases  suggested  at  the  argument 
of  judgments  of  convictions  upon  information  for  offenses  triable 
only  upon  indictment,  or  of  a finding  by  the  appellate  tribunal 

150 


against  the  jurisdictional  facts  determined  by  the  lower  court 
and  upon  which  finding  it  proceeded  to  judgrftent,  or  of  a decree 
of  an  equity  court  enjoining  the  removal  of  a municipal  officer, 
and  the  like,  the  absence  of  jurisdiction,  and  the  consequent  in- 
validity ab  initio  of  the  judgment  or  decree  rendered,  were  be- 
cause of  the  fact  that  the  lower  court  was  without  authority  to 
proceed  to  a decision  upon  the  merits  at  all — in  some  of  the 
cases  supposed,  because  the  causes  were  not  properly  before  the 
court  for  determination  or  decision  upon  the  merits,  in  others 
because  their  subject-matter  was  not  within  its  jurisdiction.  In 
no  case  cited  upon  either  side,  and  we  feel  entirely  warranted  in 
saying  in  none  that  can  be  cited,  has  it  been  held  that,  where  a 
case  is  properly  before  a court  for  decision  upon  its  merits,  and 
the  question  presented  is  one  upon  which  it  is  competent  for 
the  court  to  pass,  its  decision  is  without  jurisdiction,  or  in  excess 
of  its  jurisdiction,  because  it  decides  that  question,  however  er- 
roneously, in  one  way  rather  than  in  the  other.  Its  incorrect  de- 
cision is  error,  but  not  want  of  jurisdiction,  and  is,  therefore, 
according  to  all  the  authorities,  binding  upon  the  parties,  and  to 
be  obeyed  by  them,  until  modified  or  reversed  by  some  competent 
authority. 

Nor,  it  is  submitted,  is  there  either  principle  or  authority  for 
any  distinction  in  this  respect  between  error  as  to  rights  arising 
under  constitutions,  or  those  arising  under  statutes,  or  under 
the  common  law.  A court  has  no  greater  jurisdiction  to  deny  a 
litigant  a right  conferred  by  statute,  or  a right  which  belongs  to 
him  by  the  common  law,  than  a right  under  the  constitution.  To 
hold  that  the  jurisdiction,  i.  e.,  the  authority  of  the  court  to 
proceed  to  a decision  at  all,  as  to  the  existence  or  non-existence 
of  a right  claimed  on  the  one  side  and  denied  on  the  other,  how- 
ever it  arises — whether  under  a constitution,  a statute  or  the  com- 
mon law — depends  upon  the  correctness  or  incorrectness  of  the 
decision  made,  is  wholly  to  abolish  the  distinction,  recognized  by 
all  the  authorities,  between  jurisdiction,  on  the  one  hand,  and  er- 
ror on  the  other,  and  to  make  the  former  wholly  to  depend  upon 
the  absence  of  the  latter.  It  postpones  the  test  of  jurisdiction, 
until  after  the  exercise  of  it.  It  reduces  it  from  “the  right  to 
hear  and  determine  a cause,”  to  “the  right  to  hear  and  determine 
a cause  correctly.”  Where  the  question  to  be  decided,  whether  of 
fact  or  of  law,  is  one  upon  which  the  court’s  right  to  hear  and 
determine  the  merits  of  the  case  depends,  the  question  is  jurisdic- 
tional and  the  correctness  of  the  decision  of  that  question  is  re- 
viewable  collaterally ; but  where,  as  in  the  case  at  bar,  the  court, 
beyond  the  possibility  of  dispute,  had  the  right  to  decide  upon 
the  merits  of  the  issues  raised,  the  very  fact  that  it  had  that  right 
determines  the  question  of  jurisdiction,  which  question  cannot  be 
made  further  to  depend,  at  a wholly  subsequent  stage  of  the  suit, 
upon  any  inquiry  in  an  appellate  court  whether  or  not  there  was 
error  in  the  decision  reached. 

This  entire  question  is,  of  course,  an  immaterial  one  if  the 
appellee  is  right  in  its  contention  that  the  decision  of  this,  court 


151 


in  the  principal  case  sustains  the  court  below  upon  the  constitu- 
tional question  involved.  The  only  constitutional  question  pre- 
sented was,  did  the  constitutional  guaranty  against  laws  impairing 
the  freedom  of  speech  and  of  the  press  deprive  the  court  below 
of  jurisdiction  to  enjoin  appellants  from  the  unrestricted  right 
of  free  speech  and  free  press  claimed  by  them?  This  court  held 
that  it  did  not;  that  the  appellants  could  be  enjoined,  without 
violation  of  any  constitutional  right,  from  employing  speech  or 
the  press  in  furtherance  of  an  unlawful  purpose,  and  that  the 
decree  below  was  too  broad  only  in  that  it  enjoined  the  exercise 
of  that  right  for  purposes  which  were  not  illegal.  Their  consti- 
tutional contention,  that  they  could  not  be  denied  the  exercise  of 
free  speech  and  of  free  press,  was  denied,  and  this  was  the  only 
constitutional  question  involved.  The  further  decision  of  this 
court  that  certain  acts,  enjoined  below,  were  not  in  furtherance 
of  an  illegal  purpose,  and  therefore  should  not  have  been  en- 
joined, does  not  involve  such  a question — and  still  less  a jurisdic- 
tional question,  upon  the  considerations  above  stated  and  under 
the  principles  and  authorities  cited  at  pp.  29-42  of  our  original 
brief. 


152 


